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Full text of "North Carolina Register v.7 no. 10 (8/14/1992)"

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NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




IN ADDITION 

Final Decision Letters 

PROPOSED RULES 

Economic and Community Development 
Environment, Health, and Natural Resources 
Human Resources 
Justice 



•**» 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



^2 



ISSUE DATE: August 14, 1992 
Volume 7 • Issue 10 • Pages 966-1086 



RECEIVED 



AUG 20 1992 



LAW LIBRARY 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE Cnp p 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may i 
temporary rules. Within 24 hours of submission to OAH. 
Codifier of Rules must review the agency's written statemei 
findings of need for the temporary rule pursuant to the provisioi 
G.S. 150B-21.1. If the Codifier determines that the findings 
the criteria in G.S. 150B-21 .1, the rule is entered into the NCA( 
the Codifier determines that the findings do not meet the crit 
the rule is returned to the agency. The agency may supplemen 
findings and resubmit the temporary rule for an additional re\ 
or the agency may respond that it will remain with its in 
position. The Codifier, thereafter, will enter the rule into 
NCAC. A temporary rule becomes effective either when 
Codifier of Rules enters the rule in the Code or on the s 
business day after the agency resubmits the rule without cha 
The temporary rule is in effect for the period specified in the nil 
180 days, whichever is less. An agency adopting a temporary 
must begin rule-making procedures on the permanent rule at 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE COI 



The North Carolina Administrative Code (NCAC) 
compilation and index of the administrative rules of 25 s 
agencies and 38 occupational licensing boards. The NC 
comprises approximately 15,000 letter size, single spaced page 
material of which approximately 35% of is changed annua 
Compilation and publication of the NCAC is mandated by ( 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state 
is assigned a separate title which is further broken down 
chapters. Title 21 is designated for occupational licensing board! 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cos 
two dollars and 50 cents (S2.50) for 10 pages or 1 
plus fifteen cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling 
excess of 15,000 pages. It is supplemented mont 
with replacement pages. A one year subscription to 
full publication including supplements can 
purchased for seven hundred and fifty doll 
($750.00). Individual volumes may also be purcha 
with supplement service. Renewal subscriptions 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC shouk 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, p 
number and date. 1:1 NCR 101-201, April 1, 1986 refer 
Volume 1, Issue 1, pages 101 through 201 of the North Carol 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



ulian Mann III, 

Director 
'ames R. Scarcella Sr., 

Deputy Director 
VIolly Masich, 

Director ofAPA Services 



ISSUE CONTENTS 



I. IN ADDITION 

Final Decision Letters . 



.966 



II. PROPOSED RULES 

Economic and Community 
Development 

Division of Community 

Assistance 968 

Environment, Health, and 

Natural Resources 

Environmental Management 1013 

Human Resources 

Facility Services 980 

Medical Assistance 989 

Justice 

Sheriffs Education and 
Training 990 

III. RRC OBJECTIONS 1066 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 1069 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1070 

Text of Selected Decision 
91 OSP 0520 1075 

VI. CUMMULATIVE INDEX 1084 



taff: 

luby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
lean Shirley, 

Editorial Assistant 



NORTH CAROLINA REGISTER 

Publication Schedule 

(August 1992 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


^Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


08/03/92 


07/13/92 


07/20/92 


08/18/92 


09/02/92 


iie s|c & ;»< :■!< >i< >k 

09/20/92 


11/02/92 


08/14/92 


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* Tfie "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Comtnission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



IN ADDITION 



G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change affecting 
voting" under Section 5 of the Voting Rights Act of 1965 he published in the North Carolina Register . 



U.S. Department of Justice 

Civil Rights Division 

RD:MAP:FHD:sab Voting Section 

)J 166-012-3 P.O. Box 66128 

12-2477 Washington, D.C. 20035-6128 

July 20, 1992 

lichard J. Rose, Esq. 

D oyner & Spruill 

\0. Box 353 

locky Mount. North Carolina 27802-0353 

Dear Mr. Rose: 

This refers to the annexation [No. 192 (1992)] and the designation of the annexed area to District 6 
n the City of Rocky Mount, Edgecombe and Nash Counties, North Carolina, submitted to the Attorney 
reneral pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received 
/our submission on May 22, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
hat Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
itigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 
I28C.F.R. 51.41). 

Sincerely, 

John R. Dunn 

Assistant Attorney General 

Civil Right Division 

By: 

Steven H. Rosenbaum 
Chief, Voting Section 



7:10 NORTH CAROLINA REGISTER August 14, 1992 966 





IN ADDITION 










U.S. Department of Justice 








Civil Rights Division 


JRD:LLT:NT:tlb 






Voting Section 


DJ 166-012-3 






P.O. Box 66128 


91-3194 






Washington, D.C. 20035-6128 




October 22, 


1991 





Robert C. Cogswell, Jr., Esq. 

City Attorney 

P.O. Box 1513 

Fayetteville, North Carolina 28302-1513 

Dear Mr. Cogswell: 

This refers to the increase in compensation for specified elected officials for the City o 
Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant tc 
Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received you 
submission on August 23, 1991. 

The Attorney General does not interpose any objection to the specified change. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bai 
subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administratioi 
of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

John R. Dunn 

Assistant Attorney General 

Civil Right Division 

By: 

Gerald W. Jones 
Chief, Voting Section 



967 7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF 

ECONOMIC AND COMMUNITY 

DEVELOPMENT 

Sotice is hereby given in accordance with G.S. 
50B-21.2 that the Department of Economic and 
Community Development/Division of Community 
ssistance intends to adopt rules cited as 4 NCA C 
9S .0101-.0106, .0201-.0202. .0301 -.0302. 
1401-.0404, .0501-.0503, .0601-.0603, .0701- 
9704, .1001-.1009, and .1101-.1110. 

The proposed effective date of this action is 
'ovember 1, 1992. 

[he public hearing will be conducted at 2:00 pm 
n September 15, 1992 at 1307 Glenwood Avenue, 
uite 250, Raleigh, NC 27605. 

veason for Proposed Action: Tins proposed 
ction is necessary to enable the Division of 
Community Assistance to facilitate the implementa- 
on of the HOME Program. 

omment Procedures: Written comments may be 
ent to Bob Chandler, Division of Community 
[ssistance, 1307 Glenwood Avenue, Suite 250, 
'aleigh, NC 27605. Oral presentations may be 
tade at the pubic hearing. Persons having ques- 
lons should call Gail Brock at (919) 733-2850. 

ditor's Note: Rules .0102, .0105, .0601-. 0602 
ave been filed as temporary adoptions effective 
n July 17, 1992 for a period of 180 days or until 
he permanent rule is effective, whichever is 
ooner. 

:HAPTER 19 - DIVISION OF COMMUNITY 
ASSISTANCE 

SUBCHAPTER 19S - HOME REGULATIONS 

SECTION .0100- GENERAL PROVISIONS 

0101 OVERVIEW AND PURPOSE 

(a) Overview: Created under the National 
iffordable Housing Act of 1990, the Home Invest- 



ment in Affordable Housing (HOME) Program is 
esigned to expand the supply of decent, safe, and 



anitary housing (especially rental housing) for 



low-income Americans by strengthening the ability 
of states and local governments to design and 
implement affordable housing strategies. 

(b) Purpose: The HOME program provides 
funds to States and local governments for acquisi- 
tion, rehabilitation, new construction of affordable 
housing and tenant based rental assistance. The 
program is designed to effect a partnership betw- 
een the unit of local government and the developer 
of the affordable housing. A special set-aside of 
the HOME funds is required to be available to 
qualifying non-profit community housing develop- 
ment organizations. Funds are targeted to low and 
very low income persons and assisted units must 
remain affordable in accordance with specific 
regulatory requirements. 



Authority G.S. 
Part 92. 



143B-10; 143B-431; 24 C.F.R. 



.0102 DEFINITIONS 

The definitions in 24 CFR 92.2 are hereby 
incorporated by reference except as specifically 
provided for and written in this Rule: 

"Act" means National Affordable Hous- 



01 

m. 

£1 

14) 

15} 

16) 

ill 

£81 
191 

(10) 



ing Act. 

"Applicant" means an agency that has or 
will submit an application to the Depart- 
ment requesting HOME program funds. 
"Department" means the Department of 
Economic and Community Development. 
"Home Regulations" means the HOME 
Investment in Affordable Housing 
Program Regulations found at 24 CFR 
Part 92., as amended. 
"New construction" means housing units 
as defined in Rule .0203(c) of this 
Subchapter. 

"Recipient" means an agency that has 
been awarded an authorization of HOME 
funds by the State. 

"Secretary" means the Secretary of the 
Department of Economic and Community 
Development. 

"State" means the State of North 
Carolina. 



"State recipient" means a unit of general 
local government designated by the State 
to receive HOME funds. 
"Non-profit housing organizations" 
means private, non-profit housing 
organization that is tax-exempt under 
section 501(c) of the Internal. Revenue 
Code. 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



968 



PROPOSED RULES 



Authority G.S. 
Part 92. 



143B-10; 143B-431; 24 C.F.R. 



.0103 WAIVER 

The Secretary may waive any requirements of 
this Subchapter not required by law whenever jt ]s 
determined that undue hardship to recipients or 
beneficiaries will result from applying the 
requirement and where a determination of good 
cause has been made. Each waiver must be in 
writing and must be supported by documentation 
of the pertinent facts . 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0104 ELIGIBLE APPLICANTS 

Eligible applicants are all units of general local 
government, non-profit housing development 
organizations, and non-profit community housing 
development organizations as defined under section 
92.2 of the HOME regulations. 



Authority G.S. 143B-10; 143B-431; 
Part 92. 



24 C.F.R. 



.0105 AMENDMENTS ADOPTED BY 
REFERENCE 

All referenced federal documents jn this 
Subchapter are hereby adopted by reference to 
include any later amendments pursuant to G.S. 
150B-14(c). 



Authority 
Part 92. 



G.S. 143B-10; 143B-431; 24 C.F.R. 



.0106 ACTS AND REGULATIONS 
ADOPTED BY REFERENCE 

In addition to the provisions of this Subchapter 
all applicants and recipients of HOME funds must 
comply with all applicable provisions of the 
current Federal HOME Investment Partnerships 
Program Regulations as published in the Federal 
Register at 24 CFR Part 92.. as amended and Title 
II of the Cranston-Gonzalez National Affordable 
Housing Act of 1990, as amended. Copies of 
these sections of federal law and regulation are 
available for public inspection from the 
Department. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

SECTION .0200 - ELIGIBLE AND 
PROHIBITED ACTIVITIES 



.0201 ELIGIBLE ACTIVITIES AND COST 

This Subchapter adopts by reference as eligib 
activities and costs those activities and cos 
described in the National Affordable Housing A 
as amended under Section 212(a) and (b), and 
24 CFR 92.205-206 incorporated in Rule .0106 
this Subchapter. 



Authority 
Part 92. 



G.S. 143B-10; 143B-431; 24 C.F.I 



.0202 PROHIBITED COSTS 

All activities not defined as eligible in Ru 
.0201 shall be considered ineligible for assistanc 



under this Subchapter unless written approval hj 
been provided by the Department. Specif 



ineligible uses are listed in the National Affordah 



Housing Act as amended under Section 212(c). an 



in 24 CFR 92.214. 



Authority 
Part 92. 



G.S. 143B-10: 143B-431; 24 C.F.R 



SECTION .0300 - THRESHOLD FOR 
DIRECT HUD PARTICIPATION 

.0301 PARTICIPATION THRESHOLI 
AMOUNT 

During the initial HOME program year, if a uni 
of general local government has a formul 



allocat ion under 24 CI R 92.50 that is equal to o 
greater than five hundred thousand dollar 



($500,000) and less than seven hundred and fifh 
thousand dollars ($750,000) then the State wjl 
authorize HUD to transfer an amount of Stat 



HOME funds such that the sum of the amount; 



transferred or made available are equal to oi 
greater than the difference between the unit pj 
general local government's formula allocation anc 
seven hundred and fifty thousand dollar; 



($750.000). The State may require that the unit oj 
general local government financially participate in 



providing the amount of funds necessary to ensure 
that the unit becomes a HUD participating 
jurisdiction. 



Authority G.S. 
Part 92. 



143B-10; 143B-431; 24 C.F.R. 



.0302 PARTICIPATED FEE 

(a) Applicants that request HOME funds from 
the State may be required to pay directly to the 
Department an application fee in order to receive 
HOME funds. The amount of the application fee 
shall be based upon the total amount of HOME 



969 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



inds requested. Fees are calculated such that an 
plicant must pay a minimum of three hundred 



id fifty dollars ($350.00) or one tenth of one 
T cent (.001) of the project request, whichever is 



r eater. Applicants under the Community Housing 
levelopment Organization programs are required 



pay one tenth of one percent (.001) of the 
roject request. 

(b) Applicants that are unsuccessful will be 
:funded one half of the HOME program 
articipation fee. 



uthority G.S. 143B-10; 143B-431; 24 C.F.R. 
art 92. 

SECTION .0400 - HOME PROGRAM 
FUNDING DISTRIBUTION 

)401 DISTRIBUTION OF FUNDS 

(a) The Department shall designate specific dates 
yt submission of HOME program applications 
nder each category. 



(b) In cases where the Department makes a 
rocedural error in the application selection 
rocess that, when corrected, would result in 



warding a score sufficient to warrant a HOME 
ware, the Department may compensate that 



jplicant with an award of funds in the next 



inding cycle. 



(c) Applicants can apply for funding under the 
rogram categories of Housing Projects Category, 



[QME Consortia Category or, the Community 



lousing Development Organization Category. 



uthority G.S. 143B-10; 143B-431; 24 C.F.R. 
'art 92. 

3402 SIZE AND USE OF HOME AWARDS 
MADE TO RECIPIENTS 

(a) There js no minimum amount which 
pp licants may request or be awarded. Awards 



lade to any one recipient shall not exceed the 
llowing amount in each category: Housing 



roject Category Unlimited 
(1) Consortia Category 



One Million 



Dollars ($1,000,000); 
(2) Community Housing Development 

Organization Category Unlimited. 
(b) Awards to specific recipients will be 
rovided in amounts commensurate with the size 



f the applicant's program. In determining 
ppropriate amounts, the Department may consider 



n applicant's need, proposed activities, and ability 



) carry out the proposed activities. 



Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0403 PROGRAM CATEGORY 
ALLOCATION 

(a) HOME funds received by the State each year 
and available for award after reservations of funds 
under this Subchapter have been allocated, will be 
reserved for each program category as follows: at 
least fifteen percent of the funds will be reserved 
for awards under the Community Housing 
Development Organization program. Up to fifty 
percent of the funds will be available for the 
Consortia Category. The remaining funds will be 
distributed to applicants that have applied for funds 
under the Housing Projects Category. 

(b) If applicants fail to request the full amount 
of the set-aside in any category or if the 
Department is unable (for any reason including 
lack of applicant administrative capacity) to 
distribute the full amount of the set-aside then the 
remaining funds may be distributed to projects in 
one or more of the other categories. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0404 GENERAL APPLICATION 
REQUIREMENTS 

(a) Applicants are required to submit 
applications in a manner prescribed by the 
Department in order to be considered for funding. 
Selection of applications for funding will be based 
primarily on information contained in the 
application: thus applications must contain 
sufficient information for the Department to rate 
them against the selection criteria. In addition, 
information from any source may be considered 
which regards the eligibility of the applicant or 
application, the legality or feasibility of proposed 
activities, the applicant's compliance with 
application procedures specified in this Subchapter, 
or the accuracy of the information presented in the 
application. All applicants are required to address 
their projects to one of the grant categories listed 
in Rule .0402 of this Section. 

(b) Applications must demonstrate that projects 
proposed for assistance with HOME funds will 
meet the project requirements specified in 24 CFR 
92.250-258. 

(c) Applications must be received by the 
Departmental administrative offices in Raleigh 
before 5:00 p.m. on the submission date or sent by 
mail and postmarked on the submission date. 

(d) The applicant shall certify to the Department 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



970 



PROPOSED RULES 



that it will comply with all applicable Federal and 
State laws. Regulations, Rules and Executive 
Orders. 



(e) Applicants must comply with program 
guidelines issued by the Department for the 
purpose of administering the HOME program. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

SECTION .0500 - COMMUNITY HOUSING 

DEVELOPMENT ORGANIZATION 

CATEGORY 

.0501 DEFINITION 

The Community Housing Development 
Organization (CHDO) Program funds are available 
to eligible private non-profit organizations that 
meet both the definition of a nonprofit organization 
and the definition of a Community Housing 
Development Organization as both are defined in 
Section 92.2 of the HOME Regulations (24 CFR 
Part 92.). 

( 1 ) All eligible activities may be carried out 
by CHDOs to accomplish the purposes 
under this Subchapter. 

(2) CHDO program funds will be distributed 
on a competitive basis and projects will 
be evaluated against other CHDO project 
proposals. 

(3) The allocation of funds is made available 
to this category as established in Rule 
.0403 of this Subchapter will be available 
for a period of J_8 months (or other time 
period established by HUD) after the 
allocation of funds is made to the State 
from HUD in accordance with federal 
regulations at 24 CFR Part 92.300(a). 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0502 ELIGIBILITY' REQUIREMENTS 

Applications for CHDO program funds must 
show that: 
(1) CHDO funds will be invested only in 

housing to be developed, sponsored, or 

owned by the Community Housing 

Development Organization. 
12) The CHDO applicant meets the 

requirements of Rule .0501 of this 

Section. 
(3) The CHDO has received written approval 

from the Department that the 

organization meets the Community 



Housing Development Organizatic 



(CHDO) definition under 24 CFR Pa 

92.2. 

Authority G.S. 143B-10; 143B-431; 24 C.F.I 
Part 92. 

.0503 SELECTION CRITERIA 

Programs and individual projects will Y 
evaluated and rated based upon but not limited t 
the following: 

(1) Project feasibility, 

(2) Project appropriateness, 

(3) Need for the project funds, 

(4) Capacity to carry out the project, 

(5) Project viability, 

(6) Project affordability, 

(7) Project benefit, 

(8) Market conditions, 

(9) Project technical assistance/education. 



Authority G.S. 143B-10; 143B-431; 24 C.F.R 
Part 92. 

SECTION .0600 - HOME CONSORTIA 
CATEGORY 

.0601 DEFINITION 

A consortium of geographically contiguous unit; 



of general local government, non-profit housins 



development organizations or state agencies may 



submit an application to the Department requesting 



HOME funds to carry out activities consistent with 



the purpose of this Subchapter and the HOME 

Program Regulations at 24 CFR Part 92. 

(1 ) Consortia applicants must submit to the 

Department on the prescribed forms a 

HOME Program Consortia funding 



request. Applications for Consortia 



funding will be requested and received on 



an annual basis. 



ill 



13) 



Eligible act iviti es are those activities that 
are otherwise eligible under thi s 
Subchapter and at 24 CFR Part 92.205. 
Applicants must provide to the 
Department evidence that all parties to 
the consortium have executed a legally 



binding cooperation agreement among its 



members authorizing one member unit of 



general local government to act in a 
representative capacity for all members 



for purposes of this Subchapter and 
providing that the representative member 
assumes overall responsibility for 
ensuring that the consortiums HOME 



971 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



program is carried out m compliance 
with all applicable state and federal 
regulations including requirements 
concerning a Comprehensive Housing 
Affordability Strategy. 

(a) The agreement must not contain a 
provision for veto or other restriction 
that would allow any party to the 
agreement to obstruct the 
implementation of the approved 
Comprehensive Housing Affordability 
Strategy . 

(b) The agreement must be accompanied by 
authorizing resolutions from the 
governing body of each member or 
other acceptable evidence that the chief 
executive officer is authorized to sign 
the agreement. The agreement must be 
signed by the chief executive officer of 
each member. 

(c) The agreement must contain, or be 
accompanied by, a statement from the 
lead entity's counsel that the terms and 
provisions of the agreement are fully 
authorized under State and local law 
and that the agreement provides full 
legal authority for the consortium to 
undertake or assist in undertaking 
housing activities for the HOME 
program. 

(d) The term of the agreement must cover 
the period necessary to carry out all 
activities that will be funded by HOME 
funds and that the entities which join 
the consortium are required to remain 
in the consortium for the entire period. 
The agreement cannot contain a 
provision for termination or withdrawal 
by any party to the agreement. 

(e) If any new entities join the consortium, 
the consortium must notify the 
Department within 30 days. 

(f) If the consortium includes a CDBG 
Entitlement City as the lead entity, the 
consortium will be considered to have 
sufficient administrative capability to 
carry out the HOME program. If this 
is not the case the consortium must 
demonstrate relevant experience in 
successfully administering programs 
similar to the HOME program to the 
satisfaction of the Department. 
Consortia members may include 
agencies and organizations which are 
not units of general local government; 



isl 



only a unit of general local government 
is eligible to represent the consortia as 
required in Subparagraph (3) of this 
Rule. 

(4) Applicants must have the capacity to 
administer the HOME program. The 
Department may examine the following 
areas to determine capacity: 

(a) Audit and monitoring findings on 
previous HOME programs, and the 
applicant's fiscal accountability as 
demonstrated in other state or federal 
programs or local government financial 
reports; and 

(b) The rate of expenditure of funds and 
accomplishments in previously funded 
CDBG programs. Applicants that show 
a lack of capacity will not be rated or 
funded. 

(5) All applicants must submit certifications 
as prescribed by the Department. 

(6) State recipients must enter into a legally 
binding agreement between the 
Department and the State recipient which 
sets forth the full administrative 
responsibilities that the State recipient 
will have in carrying out its HOME 
program. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0602 ELIGIBILITY REQUIREMENT 

Applications for funds under this category must 
show that: 

(1) Applications must address and be in 
compliance with all program 
requirements and project requirements 
and project requirements under 
Subchapter E and F of 24 C.F.R. 92. 

(2) The legally designated lead entity for the 
Consortium must meet the definition of a 
State Recipient as defined at 24 CFR Part 
92.2. 

(3) The lead entity must have the legal 
authority to carry out all activities 
proposed in the application for funding. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0603 SELECTION CRITERIA 

Programs and individual projects will be 
evaluated and rated based upon but not limited to 
the following: 



NORTH CAROLINA REGISTER August 14, 1992 



972 



PROPOSED RULES 



(1) Project feasibility, 

(2) Project appropriateness, 

(3) Need for the project funds, 

(4) Capacity to carry out the project, 

(5) Project viability, 

(6) Project affordability, 

(7) Project benefit, 

(8) Market conditions, 

(9) Project Technical Assistance/Education. 



Authority G.S. 
Part 92. 



143B-10; 143B-431; 24 C.F.R. 



SECTION .0700 - HOUSING PROJECT 
CATEGORY 

.0701 DEFINITION 

The Housing Development Project category is 
designed to direct HOME funds to assist housing 
projects being carried out by units of general local 
government and private non-profit housing 
development organizations. All eligible HOME 
program activities may be undertaken under this 
category. 

(1) Applications for funding must be 
designed to address specific projects that 
could begin within six months of the 
project award date and could reasonably 
be completed within a 24 month period 
or less. 

(2) Housing Development Project funds shall 
be distributed to eligible applicants on a 
competitive basis. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.0702 ELIGIBILITY REQUIREMENTS 

Applications for funds under this category must 
show that: 

(1) Applications must address and be in 
compliance with all program 
requirements and project requirements 
under Subchapter E and F of 24 CFR 
Part 92. 

(2) Applicants shall have the capacity to 
administer the HOME Program. 

(3) All applications shall include firm 
commitments of funds from sources other 
than the HOME program and shall 
include documentation that these funds 
are currently available for the proposed 
project. 

No application will be funded without 
firm financial commitments. 



141 



Authority 
Part 92. 



G.S. 143B-10; 143B-431; 24 C.F.R. 



.0703 SELECTION CRITERIA 

Programs and individual projects will be 
evaluated and rated based upon but not limited tc 
the following: 

(1) Project feasibility, 

(2) Project appropriateness. 

(3) Need for the project funds, 

(4) Capacity to carry out the project, 

(5) Project viability, 

(6) Project affordability, 
£7} Project benefit, 

(8) Market conditions, 

(9) Project technical assistance/education. 



Authority 
Part 92. 



G.S. 143B-10; 143B-431; 24 C.F.R 



.0704 PRELIMINARY AWARDS 

The Department shall announce preliminary gran 



awards after review and evaluation of HOME 



project category applications. A grant agreement 
shall not be issued by the Department to 
recipient until a firm legally binding commitment 



with the developer has been executed and approvec 



by the Department. The legally binding 



commitment shall incorporate project specific 



implementation reflecting key project elements. 



Authority 
Part 92. 



G.S. 143B-10; 143B-431; 24 C.F.R 



SECTION .0800 - RESERVED 

SECTION .0900 - RESERVED 

SECTION .1000 - COMPLIANCE 
REQUIREMENTS 

.1001 EQUAL OPPORTUNITY AND FAIR 
HOUSING 

No person shall on the grounds of race, color. 



national origin, religion or sex be excluded from 
participation in, be denied the benefit of, or be 
subjected to discrimination under any program oi 
activity funded in whole or in part with fundi 
available under this Subchapter. Recipients shall 
meet the requirements specified in 24 CFR 92.350 



incorporated in Rule .0106 of this Subchapter 



These requirements prohibit discrimination based 
on age or handicap; promote opportunities foi 
training and employment for low-income persons 



in the jurisdiction or area in which the project is 



973 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



pcated; promote contracting for work with 



msiness concerns located in or owned by persons 
esiding in the same area as the project; encourage 
se of minority and women's business enterprises; 
nd affirmatively further fair housing. 

uthority G.S. 143B-10; 143B-431; 24 C.F.R. 
'art 92. 

1002 AFFIRMATIVE MARKETING 

Recipients must adopt the affirmative marketing 



rocedures and requirements for HOME-assisted 



ousing containing five or more housing units 



pecified in 24 CFR 92.351 as requirements for 
larticipating jurisdictions. 



luthority G.S. 143B-10; 143B-431; 24 C.F.R. 
''art 92. 

1003 ENVIRONMENTAL REVIEW 

(a) Applicants and recipients shall comply with 
le policies of the National Environmental Policy 
\sX of 1969 (NEPA) and aU other applicable 
irovisions of Federal and State law which further 



le purposes of such act (as specified in 24 CFR 
art 58). 

(1) Applicants and recipients shall assume 
the responsibilities for environmental 
review, decision-making, and other 
actions which would otherwise apply to 
the Secretary, under NEPA in 
accordance with section 104(f)(4) of 
Title I of the Housing and Community 
Development Act of 1974, as amended 
and the implementing regulations at 24 
CFR Part 58. 

(2) Applicants and recipients shall submit 
adequate information prescribed by the 
Department on the environmental 
impact of each project so that the 
Department can determine project 
compliance with the requirements of the 
North Carolina Environmental Policy 
Act of 1971 (SEPA) (G.S. 113A-1). A 
determination by the Department that 
the project complies with the 
requirements of SEPA will be made 
before the Department will release 
funds to the recipient. 

(3) It is the responsibility of the recipient to 
obtain all air pollution and water 
pollution permits for a HOME program 
pursuant to State laws and rules 
applicable to the provisions of this 
Subchapter. 



(b) All records and data shall be maintained 
pursuant to Rule . 1 109 of this Subchapter. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.1004 DISPLACEMENT, RELOCATION, 
AND ACQUISITION 

(a) Recipients shall follow the requirements of 
the Uniform Relocation Assistance and Real 
Property Acquisition policies Act of 1970 (URA) 
(P.L. 91-646) and HUD implementing regulations 
at 24 CFR Part 24 and 24 CFR Part 92. The 
following definitions shall apply: 

(1) "HUD" means the Department. 

"Federal agency" means the 



(2) 
ill 



Department. 

"State agency" means the recipient of 

HOME funds as defined in this 

Subchapter. 

(b) Recipients must ensure that is has taken all 
reasonable steps to minimize the displacement of 
persons (families, individuals, businesses, 
nonprofit organizations, and farms) as a result of 
a HOME-assisted project. 

(c) Recipients must follow the policies of 24 
CFR Part 92. for temporary relocation. 

(d) Recipients may provide relocation payments 
and assistance for individuals, families, businesses, 
nonprofit organizations and farms displaced by an 
activity that is not subject to the Uniform Act. 
Recipients also may provide relocation payments 
and other assistance at levels above those 
established under the Uniform Act. All such 
relocation assistance not required by the Uniform 
Act must be determined by the recipient to be 
appropriate to its HOME program. The recipient 
shall adopt a written policy available to the pubic 
that describes the optional relocation assistance that 
it has elected to furnish and provides for equal 
relocation assistance within each class of displaced 
persons. 

Authority G.S. 143B-W; 143B-431; 24 C.F.R. 
Part 92. 

.1005 LABOR STANDARDS 

(a) Recipients must comply with the Davis- 
Bacon Act (40 U.S.C. 276a-276a-5) and the 
Contract Work Hours and Safety Standards Act 
(42 CFR 327-333) and with other Federal laws and 
regulations pertaining to labor standards and HUD 
Handbook 1344.1 (Federal Labor Standards in 
Housing and Community Development Programs), 
as applicable, for any contract for the construction 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



974 



PROPOSED RULES 



(rehabilitation or new construction) of affordable 
housing with 12 or more units assisted with 
HOME funds. 

(b) A volunteer who receives no compensation 
or is paid expenses, reasonable benefits, or a 
nominal fee to perform volunteer services and who 
is not otherwise employed at any time in the 
construction work is exempt from the prevailing 
wage provision of the Davis-Bacon Act, 

(c) Members of an eligible family who provide 
"sweat equity" labor in exchange for acquisition of 
a property for homeownership or provide such 
labor in lieu of or as a supplement to, rent 
payments are exempt from the prevailing wage 
provisions of the Davis-Bacon Act. 

(d) All contracts required to comply with 
Paragraph (a) of this Rule must contain labor 
standards provisions. 

(e) As required by 24 CFR 24, a recipient must 
require participants in lower tier covered 
transactions to include the certification that neither 
it nor its principals is presently debarred, 
suspended, proposed for debarment, declared 
ineligible, or voluntarily excluded from 
participation from the covered transaction in any 
proposal submitted in connection with the lower 
tier transactions. A recipient may rely on the 
certification, unless it knows the certification is 
erroneous. 



(f) Recipients shall maintain records regarding 
compliance with the laws and regulations cited in 
this Rule in accordance with Rule . 1 109 of this 
Subchapter. 

Authority G.S. 143B-10: 143B-431; 24 C.F.R. 
Part 92. 

.1006 LEAD-BASED PAINT 

(a) Recipients must comply with the Lead-Based 
Paint Poisoning Prevention Act (42 U.S.C. 4821, 
et seq.) and 24 CFR Part 35 including provisions 
of the above: 

(1) prohibiting the use of lead-based paint; 
requiring elimination of lead-based 



12) 
13} 



paint hazards; and 

requiring notification of the hazards of 
lead-based poisoning to purchasers and 
tenants of housing constructed prior to 
1978 which was acquired or 
rehabilitated with HOME assistance, 
(b) Recipients are responsible for testing and 
abatement activities. 



(c) All construction contracts as described in this 
Rule shall contain a provision prohibiting the use 
of lead-based paint. 



Authority G.S. 143B-10; 143B-431; 24 C.F.R 
Part 92. 

.1007 CONFLICT OF INTEREST 

(a) Recipients must comply with the conflict a 
interest provisions in 24 CFR 85.36 and OMI 
Circular A-l 10 in the procurement of property anc 
services, if applicable. 

("b) Recipients must comply with Section 92.35( 
of 24 CFR Part 92. in afl cases not governed b 
Paragraph (a) of this Rule. 

(c) No person described in Paragraph (d) of this 
Rule who exercise or have exercised any function 



or responsibilities with respect to activities assists 



with HOME funds or who are in a position tc 
participate in a decisionmaking process or gaii 
inside information with regard to these activities, 
may obtain a financial interest or benefit from i 
HOME assisted activity; or have an interest in an\ 



contract, subcontract, or agreement with respect. 



thereto, or the proceeds thereunder, either foi 
themselves or those with whom they have a famih 



or business ties, during their tenure or for one yeai 
thereafter. 

(d) The conflict of interest provisions p_ 
Paragraph (c) of this Rule apply to any person whc 



is an employee, agent, consultant, officer, oi 

elected official or appointed official of the 

recipient receiving HOME funds. 

(e) Exceptions to the provisions of Paragraph (c) 



of this Rule will be granted on a case-by-case basis 



by HUD in accordance with 24 CFR 92.356(d 



and (e) by submitting a request for determination 
of ffie Department. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.1008 NATIONAL FLOOD INSURANCE 
PROGRAM 

(a) No HOME funds shall be used foi 
acquisition, new construction, or rehabilitation 



purposes as defined under section 3(a) of the Flood 



Disaster Protection Act of 1973 (P.L. 93-234) in 
any area that has been identified as an area having 



special flood hazards, unless the recipient in such 
an area is participating in the National Flood 



Insurance Program or less than a year has passed 



since FEMA notification regarding such hazards. 



(b) Recipients must comply with the Regulations 



implementing the Flood Disaster Protection Act of 
1973 (44 CFR 60.3), unless the recipient is 
participating rn the National Flood Insurance 
Program. 
(c) The use of HOME funds governed by this 



975 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



ibchapter for acquisition, new construction, or 



habilitation shall be subject to the mandatory 
irehase of flood insurance requirements of 
ction 102(a) of the Flood Disaster Protection Act 



1973 (P.L. 93-234). 
[d) Records of participation in the National 
ood Insurance Program shall be maintained by 
e recipient pursuant to Rule . 1 109 of this 

bchapter. 



ithority G.S. 143B-10; 143B-431; 24 C.F.R. 

irt 92. 



e appropriate state clearinghouse agencies. The 
ite agencies shall have 30 days from the receipt 
' the application to review the application and 
ye comments to the Department and the 
iplicant. 



fb) Comments containing any findings of 
:onsistencv with state or local plans, significant 
Iverse urban impact, noncompliance with 
ronmental laws, failure to provide equal 
iportunity or other comments that require a 



e Department a written statement indicating what 
:tion they plan to take as a result of these 



ridings. 



009 CLEARINGHOUSE REVIEW 

(a) Applications for funding under 



this 



ibchapter may be submitted by the Department to 



sponse may result in disapproval or conditional 



proval of the application by the Department. 



pplicants must consider all findings and submit to 



(c) Program amendments which must receive 
epartmental approval pursuant to Rule .1114 of 



is Subchapter, may be submitted to clearinghouse 



dew in accordance with Paragraph (a) of this 



ule. 

(d) All clearinghouse comments and responses 

lall be kept in accordance with Rule . 1 109 of this 



ibchapter. 



uthority G.S. 143B-10; 143B-431; 24 C.F.R. 
art 92. 

SECTION .1100 - GRANT 
ADMINISTRATION 

101 GRANT AGREEMENT 

(a) Upon approval of the application by the 
epartment. a written grant agreement will be 
cecuted between the recipient and the 



epartment. These Rules, subsequent guidelines 



epared by the Department, the approved 



>plication, and any subsequent amendments to the 



Proved application shall become a part of the 



grant agreement. 

£b) The grant agreement in its original form and 
all modifications thereto shall be maintained by the 
recipient pursuant to Rule . 1 109 of this Section. 

(c) The Department may condition the grant 
agreement until the recipient demonstrates 
compliance with all applicable laws and 
regulations. 

(d) Neither HOME nor non-HOME funds 
involved in a project may be obligated nor may 



any conditioned project activities begin until the 
Department releases in writing any and all 
applicable conditions on the project. Recipients 
may incur certain costs prior to release of 
conditions with prior Departmental approval. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

. 1 1 02 METHOD OF ADMINISTRATION 

(a) Recipients may delegate to statutorily 
authorized subrecipients the responsibility of 
undertaking or carrying out any specified HOME 
projects. All entities so designated under this 
Paragraph by recipients to undertake or carry out 
HOME projects pursuant to this Subchapter shall 
be considered subrecipients. 

(b) Recipients may contract with any person, 
association, or corporation in undertaking specified 
community development activities. All contracts, 
shall be made in conformance with the 
procurement standards set forth in Rule .0908 of 
this Subchapter. Rule .0908 of this Subchapter 
does not apply to recipients jn the selection of 
subrecipients. 

(c) Prior to disbursing funds to any subrecipient 
or contractor, the recipient must enter into a 
written agreement with the entity. The agreement 
must contain provisions required by 24 CFR 
92.504(c), incorporated by reference in Rule .0106 
of this Subchapter. 

(d) Recipients and subrecipients which are units 
of local government must comply with the 
requirements of OMB Circular A-87 and 24 CFR 
85.6, .12, .20, .22, .26, .35, .36, .44, .51. and 
.52. Recipients and subrecipients which are 
private non-profit organizations must comply with 
the requirements of OMB Circular A- 122 and 
OMB Circular A-110, Attachment B, F; H, 
paragraph 2; and O. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.1103 AUDIT 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



976 



PROPOSED RULES 



(a) Audits must be conducted in accordance with 
OMB Circular A-128 as implemented by 24 CFR 
Part 44 and OMB Circular A-133, as applicable. 

( 1 ) The recipient shall provide for an audit 
of its HOME funds on an annual basis 
in accordance with the annual 
independent audit procedures set forth 
in G.S. 159-34. 

(2) A recipient receiving less than twenty 
five thousand dollars ($25,000) during 
a fiscal year may elect to have the 
funds audited with funds received in the 
following fiscal year. 

ill T_he Audit of HOME funds may be 
performed j_n conjunction with the 
regular annual independent audit of the 
recipient and shall contain an 
examination of aU financial aspects of 
the HOME program as well as a review 
of the procedures and documentation 
supporting the recipient's compliance 
with applicable statutes and regulations. 

(4) HOME funds can not be used to pay 
for the HOME portion of the audit. 

(5) The recipient shall submit a copy of the 
Annual Audit Report to the 
Department, including all information 
required by federal and state 
regulations. 

(6) The Department may require separate 
closeout audits to be prepared by the 
recipient. 

(7) Work papers and reports shall be 
maintained for a minimum of three 
years from the date of the audit report 
unless the auditor is notified in writing 
by the Department of the need to 
extend the retention period. The audit 
workpapers shall be made available 
upon request to the Department and the 
General Accounting office or its 
designees. 

(8) If during the course of the audit, the 
auditor becomes aware of irregularities 
in the recipient organization the auditor 
shall promptly notify the Department 
and recipient management officials 
about the level of involvement. 
Irregularities include such matters as 
conflict of interest, falsification of 
records o r reports, and 
misappropriation of funds or other 
assets. 

(b) All records, data, audit reports and files 
shall be maintained in accordance with Rule . 1 109 



of this Section. 



(c) The provisions of this Rule do not limit tl 
authority of the Department to make audits 
recipients' organizations. 

Authority G.S. 143B-W; 143B-431; 24 C.F.I 
Part 92. 

.1104 CLOSEOUT 

(a) A recipient may close out HOME funds ft 
an individual Federal fiscal year when t} 
following criteria have been met: 

(1) All funds to be closed out have bet 
drawn down and expended ft 
completed project costs or funds n< 
drawn down and expended are to t 
deobligated by the Department; 
The matching funds requirements j 
Section 92.218 have been met unle; 



12) 



Ol 



(41 



waived for the fiscal year by the UJ 

Congress; 

Project Completion Reports for a 

projects using funds to be closed ot 

have been submitted and entered int 

the department's financial system i 

order for the Department to prepare th 

Closeout Report; 

The recipient has been reviewed an 

audited and the Department ha 

determined that all requirements excep 



for affordability, have been met or aj 
monitoring and audit findings have bee 



resolved. 



(A) 



The recipient's most recent aud 
report must be received by th 
Department. Even though the audi 



does not cover all funds to be close< 



out, closeout may proceed provide 



the recipient agrees in its Closeou 



Report that unaudited funds will b 
subject to the recipient's next singl 



(Hi 



audit and that the recipient may 
required to repay the Department am 
disallowed costs based on the result: 
of the audit. 

The on-site monitoring of tht 
recipient by the Department mus 
include verification of tht 
Department's financial system dati 
reflected j_n the Closeout Report anc 
reconciliation of any discrepancies 



existing between the Department's 



financial system and the recipient's 

records. 

(b) The Closeout Report contains the final date 



977 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



funds and must be signed by the recipient and 
e Department's designated official. In addition 
e report must contain: 

(1) A provision regarding unaudited funds, 
required by Part(a)(4)(i) of this Rule, 

(2) A provision requiring the recipient to 
continue to meet the requirement 
applicable to housing projects for the 
period of affordability specified in 24 
CFR Part 92.252 or 92.254; to keep 
records demonstrating that the 
requirements have been met and to 
repay HOME funds, as required by 24 
CFR 92.503, if the housing fails to 
remain affordable for the required 
period. 

uthority G.S. 143B-10; 143B-431; 24 C.F.R. 
art 92. 

105 RECORDKEEPING 

(a) The Secretary of the Department of 
conomic and Community Development, the 



scretary of the Department of Housing and Urban 



evelopment, or any of their duly authorized 



presentatives, shall have access to al| books. 



icounts, records, reports, files, and other papers 



■ property of recipients or their subgrantees and 
infractors pertaining to funds provided under this 



ibchapter for the purpose of making surveys. 



idits , examinations, excerpts and transcripts. 



(b) All HOME Program records that are public 
ider G.S. 132 shall be made accessible to 
terested individuals and groups during normal 



orking hours. 



(c) Financial records, supporting documentation 
id all other reports and records required under 
is Subchapter, and all other reports pertinent to 
e HOME Program shall be retained by the 
cipient for a period of three years from the date 



' the closeout of the program, except as follows: 

(1) Records must be retained until 

completion of the action and resolution 

of all issues arising from any litigation, 

claim, negotiation, audit or other 

action, or until the end of the regular 

period, whichever is later. 

{2} Records regarding project and other 

federal requirements applicable to 

housing assisted with HOME funds 

must be retained for three years after 

the required period of affordability 

specified in 24 CFR 92.252 or 92.254, 

as applicable. 

(3) Records covering displacements and 



acquisition must be retained for at least 

three years after the date by which all 

persons displaced from the property and 

all persons whose property is acquired 

for the project have received the final 

payment to which they are entitled. 

(d) Receipient must establish and maintain 

sufficient records to enable the Department to 

determine whether the recipient has met the 

requirements of 24 CFR 92.508 and all other 

applicable laws and regulations. All accounting 

records shall be supported by source 

documentation and shall be in compliance with this 

Subchapter. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.1106 PERFORMANCE REPORTS 

(a) Each recipient must submit management 
reports on its HOME Program in such format and 
at such time as the Department may prescribe. 

(b) A recipient must submit an annual 
performance report on its HOME activities to the 
Department at such time as the Department may 
prescribe. Single copies of file report must be 
provided to the pubic upon request at no charge. 

(c) The Annual Performance Report must 
contain such information and be in such form as 
the Department may prescribe, and must include at 
least the following: 

(1) An analysis of the recipient's efforts to 
maximize participation by the private 
sector: 

An assessment of the effectiveness of 
the affirmative marketing actions 
prescribed in Rule .1002 of this 
Subchapter; 

An assessment of the effectiveness of 
the recipient's minority outreach 
program, including an analysis of 
participation by minorities and women 
and entities owned by minorities and 
women in its HOME program and, 
where appropriate, a statement of 
additional actions planned to improve 
performance in the use of minority and 
women-owned businesses; 
Data on the total number of households 
(families and individuals) and business 
and nonprofit organizations displaced as 
a result of investments of HOME funds, 
including the cost of relocation 
payments and the number and cost of 
real property acquisitions; and 



12} An 



m 



i4) 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



978 



PROPOSED RULES 



(5) Data on the amount of repayments, 
interest, and other return on investment 
of HOME funds and the use of the 
funds, including number assisted and 
characteristics of tenants and owners. 



Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.1107 PERFORMANCE REVIEWS 

(a) A recipient's performance will be reviewed 
at least annually in accordance with 24 CFR Part 
92.550(a). The Department will rely primarily on 
information obtained from the recipient, and, as 
appropriate, the recipient's records and reports, 
findings from on-site monitoring, audit reports, 
and information generated from the recipients's 
financial system. The Department may also 
consider relevant information pertaining to a 
recipient's performance gained from other sources, 
including citizen comments, complaint 
determinations, and litigation. 

(b) A recipient's performance will be 
comprehensively reviewed periodically, as 
prescribed by the Department, to determine 
whether the recipient: 

( 1) has committed and expended HOME 
funds as required by 24 CFR Part 
92.500; and 

(2) has met the requirement of 24 CFR 
Part 92, particularly eligible activities, 
income targeting, affordability, and 
matching requirements. 

Authority- G.S. 143B-10; 143B-431; 24 C.F.R. 
Part 92. 

.1108 CORRECTIVE AND REMEDIAL 
ACTIONS 

(a) The Department will use the procedures of 
24 CFR Part 92.551 in conducting the 
performance review as provided in Rule .1111 of 
this Section and in taking corrective and remedial 
actions. 

(b) If the Department determines that a recipient 
has not met a requirement of this Subchapter, the 
recipient will be given notice of this determination 
and an opportunity to demonstrate, within a 
prescribed period of time (not to exceed 30 days) 
and on the basis of substantial facts and data that 
it has done so. 

(c) If a recipient fails to demonstrate to the 
Department's satisfaction that it has met the 
requirement. The Department will take corrective 
or remedial action in accordance with this Rule or 



Rule .1113 of this Section. 

(d) The Department will take corrective o 
remedial actions designed to prevent a continuatioi 
of the deficiency ; mitigate, to the extent possible 
its adverse effects or consequences; and prevent it 
recurrence in accordance with 24 CFR 92.551(c) 



Authority G.S. 143B-10; 143B-431; 24 C.F.R 
Part 92. 

.1109 ADMINISTRATIVE HEARINGS AND 
SANCTIONS 

(a) The Department may impose sanctions 



specified in 24 CFR Part 92..552(a)(1) and (2)(i 
on a recipient that fails to comply with an 
provision of this Subchapter, 
(b) Recipients may contest Departmental actions 



with respect to this Subchapter under the Contested 



Case Hearing Procedures set forth in G.S. 150B 
and 26 NCAC 3 - Office of Administrative 
Hearings, Hearings Division. 

(c) The Department may also commence 
contested case hearing procedures against 



recipients pursuant to G.S. 150B and 26 NCAC 3 



; Office of Administrative Hearings, Hearings 
Division. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R 
Part 92. 

.1110 PROGRAM AMENDMENTS 

(a) A recipient may amend its HOME program 



by submitting a request to the Department for 
approval in such format as the Department ma 
prescribe. 

(b) Prior approval by the Department is required 
when: 

(1) The recipient proposes to change the 
approved budget amount for any 
activity by more than 10 percent of the 
total grant amount. 

(2) The recipient proposes to add or delete 



any activity or activities, change project 



locations, or change the scope of the 
program or class of beneficiaries of 
previously approved activities; and 
(3) The cumulative effect of a number of 
smaller changes involving approved 



activities exceeds 10 percent of the total 

grant amount. 

(c) All records of program amendments shall be 



kept on file jn accordance with Rule . 1 109 of this 
Section. 

Authoritx G.S. 143B-10; 143B-431; 24 C.F.R. 



979 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



'art 92. 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

\otice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility services (DHR) 
xtends to amend rules cited as 10 NCAC 3R .3020 and .3030. 

The proposed effective date of this action is November 1, 1992. 

The public hearing will be conducted at 2:00 p.m. on September 9, 1992 at the Council Building, Room 201 , 
'01 Barbour Drive , Raleigh, NC. 

xeasonfor Proposed Action: To correct typographical errors in these two 1992 State Medical Facilities Plan 
SMFP) rules which were filed as temporary rules effective May 31 , 1992, and the permanent version of the 
ame two rules for which a Public Hearing has been scheduled 9/9/92. 

omment Procedures: Written comments should be submitted as soon as possible but no later than 9-14-92 
Jackie R. Sheppard, APA Coordinator, Division of Facility Services, P. O. Box 29530, Raleigh, NC 27626- 
1550, Telephone (919) 733-2342. 

iiditor's Note: TJiese rules have been filed as temporary amendments effective on July 23, 1992 for a 
eriod of 180 days or until the permanent rules become effective, whichever is sooner. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS 

SECTION .3000 - STATE MEDICAL FACILITIES PLAN 

3020 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following schedule for review of categories and subcategories of facilities 
nd services in 1992: 
(1) Category B. Subcategory Long-Term Nursing Facilities. 



County 


HSA 


CON Beginning 
Review Date 


Alleghany 




February 1, 1992 


Cleveland 




February 1, 1992 


Polk 




February 1, 1992 


Burke 




August 1, 1992 


Jackson 




August 1, 1992 


Alamance 


II 


February 1, 1992 


Caswell 


II 


February 1, 1992 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



980 



PROPOSED RULES 



Rockingham 


II 


February 1, 1992 


Davie 


II 


August 1, 1992 


Yadkin 


II 


August 1, 1992 


Mecklenburg 


III 


March 1, 1992 


Stanly 


III 


September 1, 1992 


Chatham 


IV 


March 1. 1992 


Person 


IV 


March 1, 1992 


Wake 


IV 


September 1, 1992 


Warren 


IV 


September 1, 1992 


Cumberland 


V 


April 1. 1992 


Moore 


V 


April 1, 1992 


Robeson 


V 


April 1, 1992 


Scotland 


V 


April 1, 1992 


Bladen 


V 


October 1, 1992 


New Hanover 


V 


October 1, 1992 


Beaufort 


VI 


April 1, 1992 


Nash 


VI 


April 1. 1992 


Northampton 


VI 


April 1, 1992 


Craven 


VI 


October 1, 1992 


Hertford 


VI 


October 1, 1992 


Pamlico 


VI 


October I, 1992 


Wilson 


VI 


October 1, 1992 



(2) Category C. Subcategory Intermediate Care Facilities for Mentally Retarded. 



County 


HSA 


CON Beginning 
Review Date 


Jackson, Haywood, Macon, Cherokee, Clay, 
Graham, Swain 


I 


December 1, 1992 


Transylvania, Henderson 


I 


December 1, 1992 


Caldwell, Burke. Alexander, McDowell 


I 


December 1, 1992 


Rutherford, Polk 


I 


June 1. 1992 


Cleveland 


I 


June 1, 1992 


Mecklenburg 


III 


May 1, 1992 


Surry, Yadkin 


II 


June 1, 1992 



981 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



Forsyth, Stokes 


II 


June 1, 1992 


Alamance, Caswell 


II 


November 1, 1992 


Orange, Person, Chatham 


IV 


May 1, 1992 


Vance, Granville, Franklin, Warren 


IV 


November 1, 1992 


Davidson 


II 


November 1, 1992 


Cumberland 


V 


December 1, 1992 


Johnston 


IV 


May 1, 1992 


Wake 


IV 


November 1, 1992 


Randolph 


II 


November 1, 1992 


New Hanover, Brunswick, Pender 


V 


December 1, 1992 


Onslow 


VI 


June 1, 1992 


Wilson, Greene 


VI 


June 1, 1992 


Edgecombe, Nash 


VI 


June 1, 1992 


Hertford, Bertie, Gates, Northampton 


VI 


December 1, 1992 


Pasquotank, Chowan, Perquimans, Camden, 
Dare, Currituck 


VI 


December 1, 1992 



3) Category D. Subcategory End Stage Renal Disease Treatment Facilities. 



Counties 


HSA 


CON Beginning 
Review Date 


Cherokee, Clay, Graham, Jackson, Macon, 
Swain 


I 


April 1, 1992 


Buncombe, Haywood, Madison, Mitchell, 
Yancey 


I 


October 1, 1992 


Henderson, Polk, Transylvania 


I 


October 1, 1992 


Ashe, Avery, Caldwell, Watauga, Wilkes 


I 


April 1, 1992 


Burke, McDowell 


I 


October 1, 1992 


Rutherford 


I 


April 1, 1992 


Alexander, Catawba 


I 


October 1, 1992 


Alleghany, Stokes, Surry 


II 


October 1, 1992 


Davidson 


II 


October 1, 1992 


Caswell, Rockingham 


II 


October 1, 1992 


Randolph 


II 


April 1, 1992 


Alamance 


II 


April 1, 1992 



10 NORTH CAROLINA REGISTER August 14, 1992 



982 



PROPOSED RULES 



Counties 


HSA 


CON Beginning 
Review Date 


Cherokee, Clay, Graham, Jackson, Macon, 
Swain 


I 


April 1, 1992 


Gaston 


III 


May 1, 1992 


Lincoln 


III 


May 1, 1992 


Rowan 


III 


October 1, 1992 


Cabarrus 


III 


October 1, 1992 


Montgomery, Stanly 


III 


October 1, 1992 


Chatham, Lee 


IV 


October 1, 1992 


Person 


IV 


May 1. 1992 


Wake 


IV 


October 1, 1992 


Johnston 


IV 


October 1, 1992 


Franklin, Vance, Warren 


IV 


May 1, 1992 


Anson 


V 


August 1, 1992 


Cumberland, Hoke 


V 


April 1, 1992 


Harnett 


V 


April 1, 1992 


Sampson 


V 


April 1. 1992 


Bladen 


V 


August 1. 1992 


Robeson 


V 


August 1, 1992 


Pender 


V 


August 1, 1992 


Brunswick 


V 


August 1, 1992 


Duplin 


VI 


April 1. 1992 


Wayne 


VI 


April 1. 1992 


Edgecombe, Nash 


VI 


April 1. 1992 


Gates, Halifax, Hertford, Northampton 


VI 


August 1, 1992 


Bertie, Washington 


VI 


August 1, 1992 


Martin 


VI 


April 1. 1992 


Greene, Pitt 


VI 


August 1, 1992 


Beaufort 


VI 


August 1. 1992 


Carteret, Craven, Jones, Pamlico 


VI 


August 1, 1992 


Onslow 


VI 


August 1, 1992 



(4) Category I. Subcategory Home Health Agencies. 



983 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



County 


HSA 


CON Beginning 
Review Date 


Mecklenburg 


III 


February 1, 1992 


Randolph 


II 


April 1, 1992 


Wilkes 


I 


April 1, 1992 



(5) All categories for which review dates are not specified in Subparagraph (1), (2), (3), (4) of 
this Rule. 



REVIEW 
PERIOD 


HSA I 


HSA II 


HSA III 


HSA IV 


HSA V 


HSA VI 


January 1 


-- 


-- 


-- 


-- 


- 


-- 


February 1 


B. G 


B, G 


A, G, ILL 

Dt-^ 


A. G. JLL 
Dt-E 


A, G, ILL 


A, G, IL 


March 1 


-- 


-- 


B, G 


B, G 


-- 


- 


April 1 


A. D, G, 
E, LE 


A, D, G, 


- 


-- 


B. G, D 


B, G. D 


May 1 


-- 


- 


C, G, PL 

D^E 


C, G, F, 

D, E 


-- 


- 


June 1 


A, C, G, 


A, C. G. 

ElE 


-- 


- 


A. C, G, 
F, E 


A, C, G, 
F, E 


July 1 


— 


— 


A.G.LB 


a. g, l e 


-- 


— 


August 1 


B, G 


B, G 


-- 


-- 


D, G. ILL 

E 


D, G, E, 


September 1 


-- 


-- 


B, G, LF 


B. G, E, E 


— 


— 


October 1 


D, G. E, 

FLLF 


D, G. E, 
£LLF 


iL D 


H,D 


B, G. H 


B, G. H 


November 1 


-- 


A, C, G, 
F, E 


A, C, G, 
F, E 


A, C, G, 
F, E 


- 


- 


December 1 


A, C, G, 

F. E 


-- 


-- 


-- 


A, C, G, 
F, E 


A, C, G, 
F, E 



Statutory- Authority G.S. 131E-176(25); 131E-177(l); 131E-183(1). 

3030 FACILITY AND SERVICE ALLOCATIONS 

Facility and services allocations are shown in Items (1) - X8) of this Rule. The allocations are 
ubject to reductions based on certificates of need awarded since November 1 5 . 1991 . 



(1) Category A. Acute Health Service Facilities. 

Morehead Memorial Hospital Service System HSA II 

Halifax Memorial Hospital Service System HSA VI 

UNC Hospital Service System HSA IV 



16 beds 

17 beds 

15 beds (University 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



984 



PROPOSED RULES 



(2) Category B. Long-Term Nursing Facility Beds. 



County 


HSA 


Number of 

Nursing 

Beds Allocated 


Alleghany 


I 


20 


Cleveland 


I 


60 


Polk 


I 


40 


Burke 


I 


60 


Jackson 


1 


20 


Alamance 


11 


60 


Caswell 


II 


20 


Rockingham 


II 


80 


Davie 


II 


90 


Yadkin 


II 


60 


Mecklenburg 


III 


100 


Stanly 


III 


60 


Chatham 


IV 


3060 


Person 


IV 


20 


Wake 


IV 


70 


Warren 


IV 


20 


Cumberland 


V 


90 


Moore 


V 


60 


Robeson 


V 


4 


Scotland 


V 


20 


Bladen 


V 


40 


New Hanover 


V 


100 


Beaufort 


VI 


40 


Nash 


VI 


60 


Northampton 


VI 


20 


Craven 


VI 


60 


Hertford 


VI 


20 


Pamlico 


VI 


20 


Wilson 


VI 


60 



students) 



985 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



(3) Category C. 
(a) Psychiatric Facility Beds. 



Counties 


HSA 


BEDS 

Adult 
Child/ Adolescent 




I 


-- 


12 


Caldwell, Burke, Alexander, 


McDowell 


Gaston, Lincoln 


III 


11 


-- 


Rowan, Iredell, Davie 


III 


19 


- 


Stanly, Cabarrus, Union 


III 


26 


10 


Surry, Yadkin 


II 


23 


-- 


Rockingham 


II 


16 


-- 


Vance, Granville, Franklin, 
Warren 


IV 


13 


-- 


Davidson 


II 


10 


- 


Lee, Harnett 


V 


15 


- 


Wake 


IV 


34 


-- 


Craven, Jones, Pamlico, 
Carteret 


VI 


14 


- 


Lenoir 


VI 


10 


— 


Beaufort, Washington, Tyrrell, 
Hyde, Martin 


VI 


17 


-- 



(b) Intermediate Care Facilities for Mentally Retarded Beds. 



Counties 


HSA 


Allocation 


Jackson, Haywood, Macon, Cherokee, 
Clay, Graham, Swain 


I 


12 


Transylvania, Henderson 


I 


12 


Caldwell, Burke, Alexander, McDowell 


I 


6 


Rutherford, Polk 


I 


6 


Cleveland 


I 


18 


Mecklenburg 


Hin 


48 


Surry, Yadkin 


ii 


12 


Forsyth, Stokes 


n 


L8 12 


Alamance, Caswell 


ii 


18 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



986 



PROPOSED RULES 



Orange. Person. Chatham 


IV 


12 


Vance. Granville, Franklin, Warren 


HIV 


6 


Davidson 


11 


6 


Cumberland 


V 


18 


Johnston 


IV 


43 6 


Wake 


HIV 


45 42 


Randolph 


Vfl 


6 12 


New Hanover, Brunswick, Pender 


V 


6 


Onslow 


VI 


18 


Wilson, Greene 


VI 


6 


Edgecombe, Nash 


VI 


6 


Hertford. Bertie, Gates, Northampton 


VI 


6 


Pasquotank, Chowan, Perquimans, 
Camden, Dare, Currituck 


VI 


6 



(c) Substance Abuse and Chemical Dependency Facility Beds. No allocation. 
(4) Category D. End Stage Renal Disease Treatment Facilities. 



Counties 


HSA 


Station Allocations 
If All Pending 
Are Approved 


Cherokee, Clay, Graham, Jackson, 
Macon, Swain 


I 


4 


Buncombe, Haywood, Madison, 
Mitchell, Yancy 


I 


13 


Henderson, Polk, Transylvania 


1 


3 


Ashe, Avery, Caldwell, Watauga, 
Wilkes 


1 


6 


Burke, McDowell 


I 


2 


Rutherford 


I 


7 


Alexander, Catawba 


I 


4 


Alleghany, Stokes, Surry 


II 





Davidson 


II 


2 


Caswell, Rockingham 


11 


7 


Randolph 


II 


3 


Alamance 


II 


6 


Gaston 


III 


6 



987 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



Lincoln 


HI 


7 


Rowan 


III 


4 


Cabarrus 


III 


5 


Montgomery, Stanly 


III 


5 


Chatham, Lee 


IV 


6 


Person 


IV 


8 


Wake 


IV 


12 


Johnston 


IV 


7 


Franklin, Vance, Warren 


IV 


10 


Anson 


V 


3 


Cumberland, Hoke 


V 


17 


Harnett 


V 


3 


Sampson 


V 


4 


Bladen 


V 


7 


Robeson 


V 


1 


Pender 


V 





Brunswick 


V 


10 


Duplin 


VI 


3 


Wayne 


VI 


4 


Edgecombe, Nash 


VI 


14 


Gates, Halifax, Hertford, Northampton 


VI 


19 


Bertie, Washington 


VI 





Martin 


VI 


8 


Greene, Pitt 


VI 


3 


Beaufort 


VI 





Carteret, Craven, Jones, Pamlico 


VI 


13 


Onslow 


VI 


6 



(5) Category E. Inpatient Rehabilitation Facility Beds. 



HSA 



Beds 



I 


20 


II 


4 


III 


20 


IV 


15 


V 


22 


VI 


35 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



988 



PROPOSED RULES 



(6) Category F. Ambulatory Surgery Facilities. 

Any area's need is determined by applying the following formula: 



1990 Amb. Surg. Cases in 
the Proposed Amb. Surg. Area 
Area Population (lOOO's) 



Projected Ambulatory Surgical 
Cases in Proposed Service Area 
600 (cases per room per year) 



or 50.9 X 



1994 Pop. 
of Area to 
be Served 
(lOOO's) 



Proposed Amb. Surg. 
Cases in Proposed 
Service Area 



Ambulatory Surgery 
.80 = Rooms Needed in 

Proposed Service Area 



This methodology is not applicable to CON ambulatory surgical applications which conform to 1( 
NCAC 3R .2115(c)(2) relative to access to medically underserved persons. 



(7) 



Category H. 
(a) Brain Injury Demonstration - Long-Term Nursing Facility Beds. 
(Jj fa) HSA I and III 
ill) f%) HSA II, IV and V, 

(less Bladen, Brunswick, Chowan. Columbus, 
New Hanover, Pender and Sampson counties.) 
(iii) fe) HSA VI 

(plus Bladen, Brunswick, Chowan, Columbus, 
New Hanover, Pender and Sampson counties.) 
Category B 



20 bed 
20 bed 



20 bed 



(b) Demonstration Project, Medically Complex Children - Long-Term Nursing Beds. 

All HSAs 
(9) Category G. 

(c) Thomas S. class - Intermediate Care Facility beds for Mentally Retarded. 



181 



All HSAs 
(40) Category I. 



10 bed 



71 bed 



New Home Health Agencies. 



County 


HSA 


Number of 
Agencies Allocated 


Mecklenburg 


III 


1 


Randolph 


II 


2 


Wilkes 


I 


1 



Statutory Authority G.S. 131E-176(25): 131E-177(I); 131E-183(1). 



%%%%%%%%%%%%:%%%%$;%% 



l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rule(s) cited as 10 
NCAC 26B .0109 and adopt rule(s) cited as 10 
NCAC 26H .0509. 



1 he proposed effective date of this action i 
November 2, 1992. 

1 he public hearing will be conducted at 1:3 
p.m. on September 3, 1992 at the North Carolm 
Division of Medical Assistance, 1985 Umsteat 



989 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



)rive, Room 132, Raleigh, N.C. 27603. 

\easons for Proposed Actions: 

NCAC 26B .0109 - To clarify rules, 
gulations, limitations and services to be 
(insistent with agency policy. 

NCAC 26H .0509 - To clarify the 
■imbursement principles for hearing aids, 
xessories and batteries. 

somment Procedures: Written comments 

mcerning these Rules must be submitted by 
'ptember 3, 1992, to: Division of Medical 

[ssistance, 1985 Umstead Drive, Raleigh, N. C. 
7603, ATTN.: Bill Hottel, APA Coordinator. 

Jral comments may be presented at the hearing. 

n addition, a fiscal impact statement is available 

ipon written request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL 
ASSISTANCE PROVIDED 

SECTION .0100 - GENERAL 

0109 HEARING AID SERVICES 

Only hearing aids and accessories provided to 
ecipients under age 21 shall be covered. Prior 
pproval shall be required for a hearing aid and 
or any — r e pairs — mad e — aft e r — the — warranty — kes 
xpired. and accessories, earmolds, repairs, 
oaner and rental aids. 



\uthority G.S. 108A-25(b): 108A-54; 42 C.F.R. 

m.no. 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 

SECTION .0500 - REIMBURSEMENT FOR 
SERVICES 

0509 REIMBURSEMENT PRINCIPLES, 
HEARING AIDS/ ACCESSORIES/ 
BATTERIES 

(a) Hearing aids and accessories, earmolds, 
repairs, loaner and rental aids are reimbursed at 



nvoice cost. Invoices must accompany claims for 



aids and accessories, earmolds, repairs, loaner and 



rental aids. Fitting and dispensing services are 



reimbursed at a fixed reimbursement fee. 



(b) Batteries are reimbursed at current retail 
costs; an invoice is not required and a dispensing 
fee for batteries is not allowed. Reimbursement 
for batteries is made for only six claims per year 
per recipient. 

Statutory Authority G.S. 108A-25(b); 108A-54. 

TITLE 12 - DEPARTMENT OF JUSTICE 

lSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Sheriffs' 
Education and Training Standards Commission 
intents to amend rule (s) cited as 12 NCAC 10B 
.0103, .0106, .0203, .0204, .0205, .0206, .0301, 
.0303, .0304. .0305, .0307, .0401, .0404, .0406, 
.0408. .0409, .0505, .0507, .0603, .0605, .2101, 
.2102, .2103, .2104, .2105; adopt rule(s) cited as 
.0911 and .0912. 

1 he proposed effective date of this action is 
January 1, 1993. 

1 he public hearing will be conducted at 9:00 AM 
on September 18, 1992 at the Holiday Inn, 
Wilkesboro, North Carolina. 



MXeason for Proposed Action: 



12 NCAC 10B .0103, .0106, .0203, .0204, .0205, 
.0206, .0301. .0303. .0304, .0305, .0307, .0401, 
.0404, .0406, .0408, .0409, .0505, .0507, .0603, 
.0605, .2101, .2102, .2103, .2104, .2105 - To 

make various technical changes for purposes of 
updating and clarifying existing rules. 

12 NCAC 10B .0911 and .0912 - To add rules to 
allow for the suspension, revocation, or denial of 
jail instructor certification and to specify sanctions 
for such action. 

Lsomment Procedures: Any person interested in 
these rules may present oral or written comments 
relevant to the proposed action at the public rule- 
making hearing. Written statements can be 
submitted beginning August 14th through 
September 18th and should be directed to the 
Sheriffs ' Standards Division. Tlie proposed rules 
are available for public inspection and copies may 
be obtained at the following address: Dept. of 
Justice, Sheriffs' Standards Div. , PO Box 629. 
Raleigh. NC 27602-0629. 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



990 



PROPOSED RULES 



CHAPTER 10 - N.C. SHERIFFS' 

EDUCATION AND TRAINING STANDARDS 

COMMISSION 

SUBCHAPTER 10B - N.C. SHERIFFS' 

EDUCATION AND TRAINING STANDARDS 

COMMISSION 

SECTION .0100 - COMMISSION 
ORGANIZATION AND PROCEDURES 

.0103 DEFINITIONS 

In addition to the definitions set forth in G.S. 
17E-2, the following definitions apply throughout 
this Chapter, unless the context clearly requires 
otherwise: 

(1) "Appointment" as it applies to a deputy 
sheriff means the date the deputy's oath 
of office is administered, and as it applies 
to a jailer means either the date the 
jailer's oath of office was administered, 
if applicable, or the jailer's actual date of 
employment as reported on the Report of 
Appointment (Form F-4A) by the 
employing agency, whichever is earlier. 

(2) f4->" Convicted" or "Conviction" means 
and includes, for purposes of this 
Chapter, the entry of: 

(a) a plea of guilty; 

(b) a verdict of finding of guilt by a jury, 
judge, magistrate, or other duly 
constituted, established, and recognized 
adjudicating body, tribunal, or official, 
either civilian or military; or 

(c) a plea of no contest, nolo contendere, 
or the equivalent. 

(3) ^"Department Head" means the chief 
administrator of any criminal justice 
agency. Department head includes the 
sheriff or a designee formally appointed 
in writing by the Department head. 

(4) f3->" Director" means the Director of the 
Sheriffs' Standards Division of the North 
Carolina Department of Justice. 

(5) (4)"Division" means the Sheriffs' 
Standards Division. 

(6) f§-)"High School" means a school 
accredited as a high school by: 

(a) the Department or Board of Education 
of the state in which the high school is 
located; or 

(b) the recognized regional accrediting 
body; or 

(c) the state university of the state in which 
the high school is located. 



ill 



18} 



£91 



(10) 



(a) 



{€)" Enrolled" means that an individual 
currently actively participating in a 
on-going formal presentation of 
commission-accredited basic trainin 
course which has not been concluded o 
the day probationary certification expire; 
"Essential Job Functions" means thos 
tasks deemed by the agency head to b 
necessary for the proper performance 
a justice officer. 
(7)" Lateral Transfer" means certificatio 
of a justice officer when the ju s tic 
officer applicant for certification ha 
previously held general or grandfath 
certification and has been separated by a 
agency or transferred to another agenc 
and provided the justice officer applicai 



has been separated from a justice offic 



certified position for no more than o 
year. 

^"Misdemeanor" means those crimin; 
offenses not classified by the Nort 
Carolina General Statutes, the Unit 
States Code, the common law, or tt 
courts as felonies. Misdemeanor offens' 
are classified by the Commission ; 
follows: 

"Class A Misdemeanor" means an a( 
committed or omitted in violation c 
any common law, duly enacte 
ordinance, criminal statute, or crimin, 
traffic code of this state, or any othe 
jurisdiction, either civil or military, fc 
which maximum punishment allowafr 
for the designated offense under ti 
laws, statutes, or ordinances of tt 
jurisdiction in which the offens 
occurred or its political subdivisioi 
includes imprisonment for a term of nc 
more than six months. Specificall 
excluded from this grouping of "class 
misdemeanor" criminal offenses ai 
motor vehicle or traffic offens' 
designated as misdemeanors und< 
Chapter 20 (Motor Vehicles) of tt 
General Statutes of North Carolin 
similar laws of other jurisdictions, c 
duly enacted ordinances of 
authorized governmental entity with th 
exception of the offense of impaire 
driving (G.S. 20-138.1) which 
expressly included herein as a class 
misdemeanor, if the defendant w< 
sentenced under punishment level thn 
[G.S. 20-179(i)], level four [G.S 



991 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



(b) 



an 



(12) 



113) 



1141 



20-179(j)], or level five [G.S. 

20-179(k)]; 
"Class B Misdemeanor" means an act 
committed or omitted in violation of any 
common law, criminal statute, or 
criminal traffic code of this state, or any 
other jurisdiction, either civil or military, 
for which the maximum punishment 
allowable for the designated offense 
under the laws and statutes of the 
jurisdiction in which the offense occurred 
includes imprisonment for a term of more 
than six months but not more than two 
years. Specifically excluded from this 
grouping of "class B misdemeanor" 
criminal offenses are motor vehicles or 
traffic offenses designated as being 
misdemeanors under Chapter 20 (Motor 
Vehicles) of the General Statutes of 
North Carolina or similar laws of other 
jurisdictions with the following 
exceptions. Class B misdemeanor does 
expressly include, either first or 
subsequent offenses of G.S. 20- 138(a) or 
(b), G.S. 20-166 (duty to stop in event of 
accident). This definition further 

includes a violation of G.S. 20-138.1 
(impaired driving) if the defendant was 
sentenced under punishment level one 
[G.S. 20-179(g)] or punishment level two 
[G.S. 20- 179(h)] for the offense and shall 
also include a violation of G.S. 20-28(b) 
(driving while license permanently 
revoked or suspended). 
^)"Felony" means any offense 
designated a felony by the laws, statutes, 
or ordinances of the jurisdiction in which 
the offense occurred. 
flWDual Certification" means that a 
justice officer holds probationary, 
general, or grandfather certification as 
both a deputy sheriff and a jailer with the 
same employing agency. 
"Jailer" means any person performing 
responsibilities, either on a full-time, 
part-time, permanent or temporary basis, 
which include but are not limited to the 
control, care, and supervision of any 
inmates incarcerated in a county jail or 
other confinement facility under the 
direct supervision and management of the 
sheriff. 

"Deputy Sheriff" means any person who 
has been duly appointed and sworn by 
the sheriff and who is authorized to 



exercise the powers of 
accordance with the laws 
Carolina. 



arrest in 
of North 



115) 



"Commission" as it pertains to criminal 
offenses shall mean a finding by the 
North Carolina Sheriffs' Education and 
Training Standards Commission or an 
administrative body, pursuant to the 
provisions of Chapter 150B of the North 
Carolina General Statutes, that a person 
performed the acts necessary to satisfy 
the elements of a specified criminal 
offense. 



Statutory Authority G.S. 17E-7. 

.0106 PROCEDURES FOR PETITIONS FOR 
RULE-MAKING 

In addition to the procedures set out in G.S. 
150B 16 150B-20 , Petitions for Rule-Making shall 
be submitted to the Commission and shall contain: 

(1) petitioner's name, address and telephone 
number; 

(2) a draft of the proposed rule or rule 
change; 

(3) the reason for its proposal; 

(4) the effect of the proposal on existing 
rules or decisions; 

(5) data supporting the proposal; 

(6) practices likely to be affected by the 

proposal; and 

(7) a list or description of persons likely to be 

affected by the proposed rule. 

Statutory Authority G.S. 150B-20. 



SECTION .0200 - ENFORCEMENT RULES 

.0203 SANCTIONS FOR VIOLATIONS BY 
INDIVIDUALS 

(a) When any person certified by the Commission 
is found to have knowingly and willfully violated 
any provision or requirement of these Rules, the 
Commission may take action to correct the 
violation and to ensure that the violation does not 
re-occur, including: 

(1) issuing an oral warning and request for 
compliance; 

(2) issuing a written warning and request for 
compliance; 

(3) issuing an official reprimand; 

(4) suspending the individual's certification 
for a specified period of time or until 
acceptable corrective action is taken by 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



992 



PROPOSED RULES 



the individual; 
(5) revoking or denying the individual's 

certification. 
-(b) — A person who has had his certification 
suspended — er — revoked — may — net — exercise — the 
authority of a ju s tice officer during the period of 
suspension or revocation. 

(c) A person who has been denied certification 
may not be employed or appointed as a justice 
officer or exerci s e — the — authority of a justice 
officer. 



Statutory Authority G.S. 17E-4. 

.0204 SUSPENSION: REVOCATION: OR 
DENIAL OF CERTIFICATION 

(a) The Commission shall revoke or deny the 
certification of a justice officer when the 
Commission finds that the applicant for 
certification or the certified officer has committed 
or been convicted of: 

(1) a felony unless pardoned by the 
Governor; or 

(2) a crime for which the authorized 
punishment could have been 
imprisonment for more than two years. t 
et 

{3} an act or any series of acts which 

violates the laws of the State of North 
Carolina and which, in the opinion of 
the Sheriff, will affect his/her ability to 
act or carry out the office and duties of 
a justice officer. 

(b) The Commission shall revoke, deny, or 
suspend the certification of a justice officer when 
the Commission finds that the applicant for 
certification or the certified officer: 

(1) has not enrolled in and satisfactorily 
completed the required basic training 
course in its entirety within a time 
period specified by the Commission; or 

(2) fails to meet or maintain any of the 
minimum employment or certification 
standards required by 12 NCAC 10B 
.0300; or 

(3) fails to satisfactorily complete the 
minimum in-service training 
requirements as presented in 12 NCAC 
10B .2000 and .2100; or 

(4) has refused to submit to the drug screen 
as required in 12 NCAC 10B .0301(6) 
or .0406(b)(4) or in connection with an 
application for or certification as a 
justice officer or a criminal justice 
officer as defined in 12 NCAC 9A 



.0103(6); or 
(5) has produced a positive result on ai 
drug screen reported to the Commissk 
as specified in 12 NCAC 10B .0410 
reported to any commission, agency, 
board established to certify, pursuant 
said commission, agency, or board 
standards, a person as a justice offic 
or a criminal justice officer as defin' 
in 12 NCAC 9A .0103(6), unless tl 
positive result is explained to tl 
Commission's satisfaction. 

(c) The Commission may revoke, deny, 
suspend the certification of a justice officer wh< 
the Commission finds that the applicant f 
certification or certified justice officer: 

(1) has knowingly made a materi 
misrepresentation of any informatk 
required for certification 
accreditation from the Commission 
the North Carolina Criminal Justi 
Education and Training Standar 
Commission; or 

(2) has knowingly and designedly by ai 
means of false pretense, deceptio 
defraudation, misrepresentation 
cheating whatsoever, obtained 
attempted to obtain credit, training 
certification from the Commission 
the North Carolina Criminal Justi' 
Education and Training Standar 
Commission; or 

(3) has aided another in obtaining 
attempting to obtain credit, training, 
certification from the Commission 
the North Carolina Criminal Justi 
Education and Training Standar 
Commission by means of deceit, frai 
or misrepresentation. This Rule sh; 
also apply to obtaining or attempting 
obtain in-service firearm 
requalification as required by Scctio 
12 NCAC 10B .2000 and .2100. 

(d) The Commission may revoke, suspend 
deny the certification of a justice officer when tl 
Commission finds that the applicant f 
certification or the certified officer has committ 
or been convicted of: 

(1) a crime or unlawful act defined in 
NCAC 10B .0103^(10)(b) as a Cla 
B misdemeanor and which occurn 
after the date of initial certification; < 

(2) a crime or unlawful act defined in 
NCAC 10B .0103ffi(10)(b) as a Cla 
B misdemeanor within the five-ye 



993 



7:10 NORTH CAROLINA REGISTER August 14, 19'. 



PROPOSED RULES 



period prior to the date of application for 
certification appointment ; or 

(3) four or more crimes or unlawful acts 
defined in 12 NCAC 10B 
.0103f84 (lQ) (b) as Class B 
misdemeanors regardless of the date of 
commission or conviction; or 

(4) four or more crimes or unlawful acts 
defined in 12 NCAC 10B 
.0103^(10)(a) as a Class A 
misdemeanor, each of which occurred 
after the date of initial certification; or 

(5) four or more crimes or unlawful acts 
defined in 12 NCAC 10B 
.01034«4(10)(a) as a Class A 
misdemeanor except the applicant may 
be certified if the last conviction or 
commission occurred more than two 
years prior to the date of application for 
certification, appointment. 

(e) A person who has had his certification 
jspended or revoked may not exercise the 



uthority or perform the duties of a justice officer 



uring the period of suspension or revocation. 



(f) A person who has been denied certification 
lay not be employed or appointed as a justice 
fficer or exercise the authority or perform the 



uties of a justice officer. 



tatutory Authority G.S. 17E-7. 

)205 PERIOD OF SUSPENSION: 
REVOCATION: OR DENIAL 

When the Commission suspends, revokes, or 
enies the certification of a justice officer, the 
eriod of sanction shall be: 

(1) permanent where the cause of sanction is: 

(a) commission or conviction of a felony; 
or 

(b) commission or conviction of a crime 
for which authorized punishment 
included imprisonment for more than 
two years; or 

(c) the second revocation, suspension, or 
denial of an officer's certification for 
any of the causes requiring a five-year 
period of revocation, suspension, or 
denial as set out in Subparagraph (2) of 
this Rule. 

(2) not less than five years where the cause 
of sanction is: 

(a) commission or conviction of a crime 
other than those listed in Subparagraph 
(1) of this Rule; however, — th* 
Commission — may — cither — reduce — er 



suspend the period of sanction under this 
Subparagraph or s ub s titute a period of 
probation in lieu of revocation following 
an admini s trative hearing or 

(b) material misrepresentation of any 
information required for certification or 
accreditation from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission; or 

(c) knowingly and designedly by any 
means of false pretense, deception, 
defraudation, misrepresentation or 
cheating whatsoever, obtained or 
attempted to obtain credit, training or 
certification from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission; or 

(d) aiding another in obtaining or 
attempting to obtain credit, training, or 
certification from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission by means of deceit, fraud 
or misrepresentation. This Rule shall 
also apply to obtaining or attempting to 
obtain in-service firearms 
requalification as required by Sections 
12 NCAC 10B .2000 and .2100 ef-this 
Subchapter ; or 

(e) failure to make either of the 
notifications as required by 12 NCAC 
10B ,0301ia](7);or 

(f) removal from office under the 
provisions of G.S. 128-16; or 

(g) a positive result on a drug screen, or a 
refusal to submit to drug testing both 
pursuant to 12 NCAC 10B .0301 and 
12 NCAC 10B .0406. or in connection 
with an application for certification as 
a criminal justice officer as defined in 
12 NCAC 9A .0103(6). 

(h) The Commission may either reduce or 
suspend the periods of sanction under 
this Subparagraph or substitute a period 
of probation in lieu of revocation, 
suspension or denial following an 
administrative hearing. This authority 
to reduce or suspend the period of 
sanction may be utilized by the 



Commission when extenuating 

circumstances brought out at the 

administrative hearing warrant such a 
reduction 



or suspension. 



the 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



994 



PROPOSED RULES 



discretion of the Commission. 
(3) for an indefinite period, but continuing so 
long as the stated deficiency, infraction, 
or impairment continues to exists, where 
the cause of sanction is: 

(a) failure to meet or satisfy relevant basic 
training requirements; or 

(b) failure to meet or maintain the 
minimum standards of employment or 
certification: or 



*e)- 



<^J 



di s cht 



li s crinrge — from — a — cnminal — ju s tic e 
agency for impairment of physical or 
mental capabilitie s ; or 
fd-)failure to meet or satisfy the 
in-service training requirements as 
prescribed in 12 NCAC 10B .2100. 



Statutory Authority G.S. 17E-4; 17E-7. 

.0206 SUMMARY SUSPENSIONS: OR 
DENIALS 

(a) The Commission may summarily suspend 
or deny the certification of a justice officer or 
instructor when, in the opinion of the Commission, 
the public health, safety, or welfare requires this 
emergency action of summary suspension or 
denial. The Commission has determined that the 
following conditions specifically affect the public 
health, safety, or welfare and therefore it. by and 
through the Director, mm shall utilize summary 
suspension or denial following a full investigation 
of the matter when: 

(1) the applicant for certification or the 
certified justice officer has committed 
or been convicted of a violation of the 
criminal code which would require a 
permanent revocation or denial of 
certification; or 

the justice officer has failed to comply 
with the training requirements of 12 
NCAC 10B .0500 and .0600; or 
the certified justice officer fails to 
satisfactorily complete the minimum 
in-service training requirements as 
prescribed in 12 NCAC 10B .2100. 
A person who has had his or her 
certification summarily suspended or denied may 
not exercise the authority or perform the duties of 
a justice officer during the period of suspension or 
denial. 

Statutory Authority G.S. 17E-8; 17E-9: 150B-3(c). 

SECTION .0300 - MINIMUM STANDARDS 
FOR EMPLOYMENT AND 



(2) 



(3) 



iM 



(1) 
(2) 
(3) 

(4) 

(5) 

(6) 



CERTIFICATION AS A JUSTICE OFFICE] 

.0301 MINIMUM STANDARDS FO 
JUSTICE OFFICERS 

(a) Every Justice Officer employed or certifit 
as a Deputy Sheriff or Jailer in North Carolii 
shall: 

be a citizen of the United States; 

be at least 21 years of age; 

be a high school graduate, or tl 

equivalent (GED); 

have been fingerprinted by tl 

employing agency; 

have had a medical examination by 

licensed physician; 

have produced a negative result on 

drug screen administered according 

the following specifications: 

(A) the drug screen shall be a urine te 
consisting of an initial screening te 
using an immunoassay method and 
confirmatory test on an initial posith 
result using a gas chromatoraphy 
mass spectrometry (GC/MS) or oth 
reliable initial and confirmatory tes 
as may, from time to time, t 
authorized or mandated by tl 
Department of Health and Hum 
Services for Federal Workplace Dm 
Testing Programs; and 

(B) a chain of custody shall be maintaine 
on the specimen from collection to tl 
eventual discarding of the specimei 
and 

(C) the drugs whose use shall be teste 
for shall include at least cannabi 
cocaine, phencyclidine (PCP), opiatt 
and amphetamines or the 
metabolites; and 

(D) the test threshold values establishe 
by the Department of Health an 
Human Services for Feder; 
Workplace Drug Testing Progran 
are hereby adopted incorporated b 
reference, and shall automaticall 
include any later amendments an 
editions of the adopted — metfc 
referenced materials as authorized b 



G.S. 150B 1 4 (c) . Copies of th 
information may be obtained from th 
National Institute on Drug Ab 
5600 Fisher Lane, Rockvilk 



(E) 



Maryland 20857 at no cost at the tin? 

of adoption of this Rule; and 

the test conducted shall be not moi 



995 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



than 60 days old, calculated from the time 
when the laboratory reports the results to 
the date of employment; and 

(F) the laboratory conducting the test 
must be certified for federal 
workplace drug testing programs, and 
must adhere to applicable federal 
rules, regulations and guidelines 
pertaining to the handling, testing, 
storage and preservation of samples, 
except that individual agencies may 
specify other drugs to be tested for in 
addition to those drugs set out in 
Subsection (c) of this Rule; 

(G) every agency head shall be 
responsible for making adequate 
arrangements for the services of a 
medical review officer (MRO) for the 
purpose of review of drug tests 
reported by the laboratory and such 
officer shall be a licensed physician. 

(7) notify the Standards Division in writing 
of all criminal offenses with which the 
officer is charged, pleads no contest to. 
pleads guilty to or is found guilty of. 
This shall include all criminal offenses 
except minor traffic offenses and shall 
specifically include any offense of 
Driving Under The Influence (DUI) or 
Driving While Impaired (DWI). A 
minor traffic offense is defined, for 
purposes of this Subparagraph, as an 
offense where the maximum punishment 
allowable is 60 days or less. The 
notifications required must specify the 
nature of the offense, the court in 
which the case was handled and the 
date of the conviction, disposition. The 
notifications must be received by the 
Standards Division within 30 days of 
the date the case was disposed of in 
court. Officers required to notify the 
Standards Division under this 
Subparagraph shall also make the same 
notification to their employing or 
appointing executive officer within 20 
days of the date the case was disposed 
of in court. The executive officer, 
provided he has knowledge of the 
officer's conviction charge (s), shall also 
notify the Division of aH — criminal 
convictions within 30 days of the date 
the case was disposed of in court. 
Receipt by the Standards Division of a 
single notification, from either the 



officer or the executive officer, is 
sufficient notice for compliance with 
this Subparagraph; 

(8) be of good moral character; 

(9) have a thorough background 
investigation conducted by the 
employing agency, to include a 
personal interview prior to 
employment; 

(10) not have committed or been convicted 
of a crime or crimes as specified in 
Rule 12 NCAC 10B .0307. of thi s 
Section. 

(b) The requirements of this Rule shall apply to 
all applications for certification and shall also be 
applicable at all times during which the justice 
officer is certified by the Commission. 

Statutory Authority G.S. 17E-7. 



.0303 FINGERPRINT RECORDS 
CHECK 

(a) Each applicant for certification shall be 
fingerprinted twice using forms specified by the 
Division. Both fingerprint cards shall be 
forwarded to the State Bureau of Investigation 
(SBI) who will in turn, forward one card to the 
Federal Bureau of Investigation (FBI). A criminal 
history records check against State and Federal 
files will be conducted by both agencies based on 
those prints. Upon receipt from the SBI, the 
Division shall forward either the original 
fingerprint card bearing the results of the criminal 
history records check, or a computerized print-out 
bearing the results of the criminal history records 
check, to the employing agency who shall retain 
the card or the computerized print-out in the 
applicant's personnel file. 

ihj Each — applicant — s hall — provide — te — the 

employing agency a certified copy of a check of 
the applicant' s criminal history record from the 
Clerk of Court in each county where the applicant 
ha s re s ided within the preceding six months. — The 
e mploying agency s hall perform a criminal history 
record s check of the agency' 3 own files for each 
applicant. — A certified copy of the results of all 
required criminal history records checks s hall be 
forwarded — wrth — the — applicant's — Report — ef 
Appointment form (F 4 ) or (F 4 A) to the Divi s ion. 
Additionally, a photocopy of the results of all 
required criminal hi s tory records checks shall be 
retained by the agency in the applicant' s personnel 
fi4er 

(b) fe) Certifications issued prior to the receipt 
by the Division of the fingerprint and criminal 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



996 



PROPOSED RULES 



history records check of state and federal files, as 
conducted by the SBI and FBI. are conditional. 
Such conditional certifications may summarily be 
suspended by the Commission upon receipt from 
the SBI or FBI of a fingerprint or criminal history 
records check that indicates that the officer has 
been convicted of an offense as specified in Rule 
^iQ=k 12 NCAC 10B .0307. 

ic) In compliance with 12 NCAC 10B .0404 (a) 
( 1 ). a justice officer shall not be eligible for 
general certification and shall remain on 
probationary certification until the requirements of 
this Rule have been met. 

Statutory Authority G.S. 17E-7. 

.0304 MEDICAL EXAMINATION 

(a) Each applicant shall complete the 

Commission's Medical History Statement Form 
(F-l) and shall be examined by a physician or 
surgeon licensed in North Carolina to help 
determine his/her fitness in carrying out the 
physical requirements of the position of deputy 
sheriff or jailer. The examining physician should 
read and sign the F-2A form attached to the 
Medical Examination Report Form (F-2) prior to 
beginning the examination. The examining 
physician shall record the results of the 
examination on the Medical Examination Report 
Form (F-2) and sign and date the form. The F-2 
form shall be valid one year from the date the 
Medical Examination was completed and signed by 
the physician. The physical examination shall be 
conducted and the Medical Examination Report 
Form (F-2) and the Medical History Statement 
Form (F-l) shall be completed prior to whichever 
of the following occurs first: 

( 1 ) the applicant's beginning the Jailer 
Certification Course and/or the Basic 
Law Enforcement Training Course; or 

(2) the applicant's applying to the 
Commission for certification. 

(b) Although not presently required by these 
rules, it is recommended by the Commission that 
each candidate for the position of justice officer be 
examined by a licensed psychiatrist or clinical 
psychologist, or be administered a psychological 
evaluation test battery, prior to employment , to 
determine his/her mental and emotional suitability 
to perform the duties essential job functions of a 
justice officer. 

Statutory Authority- G.S. 17E-7. 

.0305 BACKGROUND INVESTIGATION 



(a) Prior to the background investigation 4en 
conducted by the employing agency to determin 
the applicant's suitability to perform essential jo 
functions, the applicant shall complete th 
Commission's Personal History Statement (F-3)t 
provide a basis for the investigation. The Person; 
History Statement (F-3) submitted to the Divisio 
shall be completed no more than 120 days prior t 
the applicant's date of appointment . 

fB the — applicant' s — beginning — the Jailo 



Certification Course and/or Basic La' , 



*3*- 



Enforcement Training Course; or 
-the applicant's applying to — & 



Commission for certification 

(b) If the Personal History Statement (F-3) wa 

completed more than 120 days prior to th 

applicant's applying — to — the — Commission — fe 



certification date of appointment , the Persons 
History Statement (F-3) shall be updated by th 
applicant who shall initial and date all changes o 
a new Personal History Statement (F-3) must b 
completed. 

(c) The employing agency shall ensure th 
proper dates, signatures, and notarizations ar 
affixed to the Personal History Statement (F-3 
prior to submission to the Division 

(d) The employing agency, prior t 
employment, shall examine the applicant' 
character traits and habits relevant to his/he 
performance as a justice officer and shal 
determine whether the applicant is of good mora 
character. The investigator shall summarize th 
results of the investigation on 
commission-approved form which shall be signet 
and dated by the investigator. 

(e) Each applicant shall provide to th 
employing agency a certified copy of a check o 
the applicant's criminal history record from th 
Clerk of Court in each county where the applican 



has resided within the preceding six months. Th; 
employing agency shall perform a criminal histon 



records check of the agency's own files for each 
applicant. A certified copy of the results of al 
required criminal history records checks shall be 
forwarded with the applicant's Report o 
Appointment form (F-4) or (F-4A) to the Division 



Additionally, a photocopy of the results of al 
required criminal histon.' records shall be retainer 



by the agency in the applicant's personnel file. 

(f) The employing agency shall also forward t< 
the Division certified copies of any crimina 



charge(s) and disposition(s) known to the agenc\ 



and /or listed on the applicant's Personal Histon 
Statement (F-3). This documentation shall b 
included with all other documentation required jr 



997 



7:10 NORTH CAROLINA REGISTER August 14, 1991 



PROPOSED RULES 



NCAC 10B .0408. 
itutory Authority G.S. 17E-7. 

307 CRIMINAL HISTORY RECORD 

a) Consistent with and subject to the 
^uirements of YL NCAC 10B .0204 . every 



tice officer employed or certified in North 
irolina shall not have committed or been 
nvicted by a local, state, federal or military 
urt of: 

(1) a felony, unless pardoned by the 
Governor; or 

(2) a crime for which the punishment could 
have been imprisonment for more than 
two years; or 

{£) an act. or any scries of act s which 

violate the laws of the State of North 



©# 



(3) 



141 



151 



Carolina and which, in the opinion 
the sheriff, will affect his/her ability to 
act or carry out the office and dutie s of 
a justice officer. 

f4)a crime or unlawful act defined as a 
"Class B Misdemeanor" within the five 
year period prior to the date of 

application f-e-F employment 

appointment : or 

{5)four or more crimes or unlawful acts 
defined as "Class B Misdemeanors" 
regardless of the date of conviction or 
commission ; or 

{6)four or more crimes or unlawful acts 
defined as "Class A Misdemeanors" 
except the applicant may can be 
employed if the last conviction or 
commission occurred more than two 
years prior to the date of application for 
employment appointment . 



fb) — Every ju s tice officer employed in North 



irolina shall also be subject to the requirement s 
12 NCAC 10B .020 4 . 



[bj fe) The requirements of this Rule shall be 
plicable at all times during which the officer is 
rtified by the Commission and shall also apply to 
applications for certification. 

tatutory Authority G.S. 17E-7. 

SECTION .0400 - CERTIFICATION OF 
JUSTICE OFFICERS 

401 CERTIFICATION OF SHERIFFS' 
DEPARTMENT PERSONNEL 

Every person employed or appointed a s a justice 
ficer by a sheriff s department performing the 



duties of a deputy sheriff or a jailer as defined in 
12 NCAC 10B .0203 (13) and (14) , except those 
certified pursuant to Rule .0 4 07 12 NCAC JOB 
.0407 , shall meet the certification requirements of 
this Subchapter. Section — .0 4 00. — Justice officers 



fied- 



-tt» 



meeting — the — requirement s — as — s peci 

chapter may be certified a s either a deputy s heriff, 

a jailer, or both. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0404 GENERAL CERTIFICATION 

(a) The Commission shall grant an officer 
general certification if evidence is received by the 
Division that the officer has: s uccessfully 
completed — the — required — training — within — the 
probationary period, and that the officer ha s met 
all oth e r requirements for general certification. 



UQ 



(21 



complied with all of the requirements of 
12 NCAC 10B .0300: and 



successfully completed the required 
training within the probationary period. 
(b) General certification is continuous from the 
date of issuance if: 

(1) The certified officer remains 
continuously employed or appointed as 
an officer in good standing with an 
agency and the certification has not 
been terminated for cause; or 

(2) The certified officer, having separated 
in good standing from an agency, is 
reemployed or reappointed as a justice 
officer within one year, and the 
certification has not been terminated for 
cause. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0406 LATERAL TRANSFER/ 
RESTATEMENTS 

(a) An officer with general or grandfather 
certification who: 

(1) is currently certified; or 

(2) has been separated but has not been out 
of service for more than one year or 
who has had no break in service, may 
be appointed by laterally transfer to an 
agency and be certified upon 
compliance with this Rule. .0 4 06. 

(b) The employing agency shall verify the 
applicant's certification status with the Division 
prior to submission of the application for 
certification as a justice officer. 

(c) (fe)In order for an officer to be certified 
pursuant to this Rule .0 4 06 there mu s t be: ^ the 



7 :10 NORTH CAROLINA REGISTER August 14, 1992 



998 



PROPOSED RULES 



employing agency shall submit to the Division, 
along with the Report of Appointment (F-4 and/or 
(F-4A), the following documents: 

<-B verification by the employing agency of 

the officer's certification status with the 
Division; 
£1) (2)compliancc with the requirements for 
fingerprints fingerprint cards and 
criminal history records checks as 
specified in Ru4e 12 NCAC 10B 
.0303; 

(2) (3)compliancc with the requirement for 
the applicant's Medical History 
Statement (F-l) and Medical 
Examination Report (F-2) specified in 
Rttte 12 NCAC 10B .0304; 

(3) f4)evidence of a negative result on a 
drug screen administered according to 
the specifications as outlined in 12 
NCAC 10B .0301(6); 

{&) compliance with the Report — ef 

Appointment form requirement of Rule 
.0 4 03; 



14} 



(51 



£61 



Id} £e) 

suspended 
may have 
that: 
(1) 

(2) 



(6)submittcd to the Division, a copy of 
the Oath of Office for applicants 
requesting certification as a deputy 
sheriff; 

^evidence of satisfactory completion 
of the employing agency's in-service 
firearms training and requalification 
program pursuant to Sections .2000 and 
.2100; and 12 NCAC 10B .2000 and 
.2100; 

f8}documentary evidence of high 
school, college or university graduation 
to the employing agency. Documentary 
evidence consists of diplomas from 
recognized public schools or approved 
private schools, colleges or universities 
which meet approval guidelines of the 
North Carolina Department of Public 
Instruction or a comparable out of state 
agency; or documentary evidence of the 
attainment of satisfactory scores on any 
military high school equivalency 
examination will be acceptable as 
verified by a true copy of the veteran's 
DD214. 

An officer whose certification has been 

pursuant to 12 NCAC 10B .0204(b)(1) 

that certification reinstated provided 

the period of suspension has been one 

year or less; and 

the officer has successfully completed 



the basic training requirements 
prescribed in 12 NCAC 10B .0500 o 
.0600. 

(e) {4) Requirements of Paragraph {¥) £cl of thi 
Rule are waived for officers whose certification 
are reinstated pursuant to Paragraph (e) (d) of thi 
Rule. 

(f) All information maintained pursuant to th 
requirements of this Rule shall be subject to a] 
state and federal laws and guidelines governi n 
confidentiality. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0408 VERIFICATION OF RECORDS T 
DIVISION 

(a) Prior to the initial probationary certificatio 
of each justice officer, for the purpose of verifyinj 
compliance with these Rules, the employin 
agency shall submit to the Division, along with th 
Report of Appointment (F-4) and/or (F-4A), copie 
of the following documents: 



(1) 

(2) 

(3) 
(4) 

(5) 
(6) 
ill 

(8} 



verification of the applicant' 

compliance with the educatioua 

requirement pursuant to Rule ,0302(a 

12 NCAC 10B .0302 (a); 

certified copy of the applicant's Oath o 

Office, if applying for certification as 

deputy sheriff; 

the applicant's Medical Histor 

Statement (F-l); 

the applicant's Medical Examinatioi 

Report (F-2 and F-2 A); 

the applicant's notarized Persona 

History Statement (F-3); and 

a summary of the applicant' 

background investigation; 

documentation of negative results on 

drug screen pursuant to J_2 NCAC 101 

.0301(6); and 

certified co pies of criminal charges am 



dispositions as required in j_2 NCA( 

10B .0305(e) and (f). 

(b) Compliance with this Rule . 4 08(a) i 

waived for officers applying for dual certificatioi 

as defined in ftu4e 12 NCAC .0103f4£) £12 

provided that: 

(1) the officer holds a valid certification a 
either a deputy sheriff or jailer with th 
employing agency requesting dua 
certification; and 

(2) the officer has not had a break i 
service since initial certification wit 
the employing agency requesting dua 
certification. 



999 



7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



(c) All information maintained pursuant to the 
'.q uirements of this Rule shall be subject to all 



:a te and federal laws and guidelines governing 
nnfidentialitv. 



Statutory Authority G.S. 17E-4; 17E-7. 

)409 EMPLOYING AGENCY RETENTION 
OF CERTIFICATION RECORDS 

(a) Each employing agency shall place in the 
Dpropriate justice officer's personnel file the 
fficial notification of either probationary or 
eneral certification. Such files shall be available 
jr examination at any reasonable time by 

presentatives of the Commission for the purpose 

f verifying compliance with these Rules. Each 
ersonnel file shall also contain: 

(1) a copy of the applicant's Report of 
Appointment (F-4) and/or (F-4A); 

(2) verification of the applicant's 
compliance with the educational 
requirement pursuant to R«4e .0302(a); 
12 NCAC 10B .0302(a); 

(3) a certified copy of the applicant's Oath 
of Office, if applying for certification 
as a deputy sheriff; 

(4) the results of the applicant's fingerprint 
records check and the criminal history 
records check; 

(5) the applicant's Medical History 
Statement (F-l); 

(6) the applicant's Medical Examination 
Report (F-2 and F-2A); 

(7) the applicant's Personal History 
Statement (F-3); 

(8) a summary of the applicant's 
background investigation; 

(9) a copy of a commission-approved 
Firearms Requalification Record Form; 

(10) documentation of negative results on 
drug screen pursuant to Rule 
.0301(6) 12 NCAC 10B .0301(a)(6) . 

(b) Compliance with this Rule .0 4 09(a) is 
/aived for officers applying for dual certification 
s defined in Rule .0103(10) 12 NCAC 10B .0103 
12) provided that: 

(1) the officer holds a valid certification as 
either a deputy sheriff or jailer with the 
employing agency requesting dual 
certification; and 

(2) the officer has not had a break in 
service since initial certification with 
the employing agency requesting dual 
certification. 

(c) All information maintained pursuant to the 



requirements of this Rule shall be subject to all 
state and federal laws and guidelines governing 
confidentiality. 

Statutory Authority G.S. 17E-4. 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1000 



PROPOSED RULES 



SECTION .0500 - MINIMUM STANDARDS OF TRAINING FOR DEPUTY SHERIFF 

.0505 EVALUATION FOR TRAINING WAIVER 

(a) The Division staff shall evaluate each deputy's training and experience to determine if equivalent trainin 
has been satisfactorily completed as specified in R«4e Y2 NCAC 10B .0504(a). Applicants for certificatio 
with prior law enforcement experience shall have been employed in a sworn law enforcement position i 
order to be considered for training evaluation under this Rule. The following rules shall be used by Divisio 
staff in evaluating a deputy's training and experience to determine eligibility for a waiver of training. 

(1) Persons who separated from a sworn law enforcement position during their probationary perio 
after having completed a commission-accredited Basic Law Enforcement Training Course and wh 
have been separated from a sworn law enforcement position for more than one year shall complet 
a subsequent commission-accredited Basic Law Enforcement Training Course in its entirety an 
successfully pass the State Comprehensive Examination within the 12 month probationary perio 
as prescribed in 12 NCAC 10B .0503(a). 

(2) Persons who separated from a sworn law enforcement position during their probationary perio 
after having completed a commission-accredited Basic Law Enforcement Training Course and wh 
have been separated from a sworn law enforcement position for one year or less shall serve th 
remainder of the initial probationary period in accordance with G.S. 17E-7(b), but need no 
complete an additional training program. 

(3) Persons who separated from a sworn law enforcement position during their probationary perio 
without having completed Basic Law Enforcement Training, or whose certification was suspende 
pursuant to 12 NCAC 10B .0204(b)(1), and who have remained separated or suspended for ov 
one year shall complete a commission-accredited Basic Law Enforcement Training Course in it 
entirety and successfully pass the State Comprehensive Examination, and shall be allowed a 1 
month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(4) Out-of-state transferees shall be evaluated to determine the amount and quality of their training an 
experience. Out-of-state transferees: 

(A) shall have a minimum of two years full-time sworn law enforcement experience; 

(B) shall not have a break in service exceeding two years; and 

(C) shall have successfully completed the Basic Law Enforcement Training Course accredited by th 
state from which he/she is transferring. Out-of-state transferees meeting these requirements shal 
successfully complete a commission-accredited Basic Law Enforcement Training Course whic 
includes the following topics of North Carolina law and procedure and successfully pass the Stat 
Comprehensive Examination in its entirety within the 12 month probationary period as prescribe 
in 12 NCAC 10B .0503(a). 

(i) Laws of Arrest, search and Seizure 16 hour 

(ii) Elements of Criminal Law 24 hour 

(iii) Juvenile Laws and Procedures 8 hour 

(iv) Controlled Substances 6 hour 

(v) ABC Laws and Procedures 4 hour 

(vi) Motor Vehicle Laws 20 hour 

(vii) Civil Process 24 hour 

(viii) Supplemental Custody Procedures 8 hour 

(ix) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 110 hour 

(5) Persons previously holding Grandfather law enforcement certification in accordance with G.S 
17C- 10(a) or G.S. 17E-7(a) who have been separated from a sworn law enforcement position fo 
more than one year and who have not previously completed a minimum Basic Law Enforcemen 
Training Course accredited by the North Carolina Criminal Justice Education and Trainin 
Standards Commission and/or the North Carolina Sheriffs' Education and Training Standard 
Commission shall be required to complete a commission-accredited Basic Law Enforcemen 
Training Course in its entirety and successfully pass the State Comprehensive Examination withii 
the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 



1001 7:10 NORTH CAROLINA REGISTER August 14, 1991 



PROPOSED RULES 



(6) Persons who have completed a minimum 160-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines 
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have 
been separated from a sworn law enforcement position for more than one year but no more than 
two years shall be required to complete the following portions of a commission-accredited Basic 
Law Enforcement Training Course and successfully pass the State Comprehensive Examination 
within the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(A) Juvenile Law and Procedures 8 hours 

(B) Laws of Arrest, Search and Seizure 16 hours 

(C) Elements of Criminal Law 24 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Law Enforcement Driver Training 16 hours 
(H) Civil Process 24 hours 
(I) Supplemental Custody Procedures 8 hours 
(J) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 26 hours 

(7) Persons who have completed a minimum 160-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines 
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have 
been separated from a sworn law enforcement position for more than two years shall be required 
to complete a commission-accredited Basic Law Enforcement Training Course in its entirety 
regardless of training and experience and successfully pass the State Comprehensive Examination 
within the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(8) Persons who have completed a minimum 240-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Criminal Justice Education and Training Standards Commission 
and the North Carolina Sheriffs' Education and Training Standards Commission under guidelines 
administered beginning October 1 , 1978 and continuing through September 30, 1984 and who have 
been separated from a sworn law enforcement position for over one year but no more than three 
years shall be required to complete the following portions of a commission-accredited Basic Law 
Enforcement Training Course and successfully pass the State Comprehensive Examination within 
the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 110 hours 

(9) Persons who have completed a minimum 240-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Criminal Justice Education and Training Standards Commission 
and the North Carolina Sheriffs' Education and Training Standards Commission under guidelines 
administered beginning October 1 , 1978 and continuing through September 30, 1984 and who have 
been separated from a sworn law enforcement position for more than three years shall be required 
to complete a commission-accredited Basic Law Enforcement Training Course in its entirety 
regardless of prior training and experience and successfully pass the State Comprehensive 
Examination within the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(10) Persons who have completed a minimum 381 hour Basic Law Enforcement Training Course 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1002 



PROPOSED RULES 



accredited by the North Carolina Sheriffs' Education and Training Standards Commission und< 
guidelines administered beginning October 1, 1984 and ending December 31, 1988 and who ha\ 
been separated from a sworn law enforcement position for over one year but no more than thre 
years shall be required to complete the following portions of a commission-accredited Basic La 
Enforcement Training Course and successfully pass the State Comprehensive Examination withi 
the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hou: 

(B) Elements of Criminal Law 24 hou 

(C) Juvenile Laws and Procedures 8 hou 

(D) Controlled Substances 6 hou 

(E) ABC Laws and Procedures 4 hou 

(F) Motor Vehicle Laws 20 hou 

(G) Civil Process 24 hou 
(H) Supplemental Custody Procedures 8 hou 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 1 10 houi 

(11) Persons transferring to a sheriffs department from another law enforcement agency who hoi 

certification issued by the North Carolina Criminal Justice Education and Training Standarc 

Commission and who have previously completed a minimum 369 hour commission-accredited Basi 

Law Enforcement Training Course accredited by the North Carolina Criminal Justice Educatio 



and Training Standards Commission under guidelines admini s tered beginning on or after Octobe 
1, 1984 and ending July 1, 1989 and who have been separated from a sworn law enforcemei 
position for no more than one year or who have had no break in service shall be required t 
complete the following enumerated topics of a commission-accredited Basic Law Enforcemei 
Training Course and successfully pass that portion of the State Comprehensive Oath Examinatio 
which deals with those subjects within 12 months of the date of their Oath of Office appointmer 
as pre s cribed defined in 12 NCAC 10B .0503(a). .0103(1). 

(A) Civil Process 24 houi 

(B) Supplemental Custody Procedures 8 houi 



TOTAL HOURS 32 houi 

(12) Persons who have completed a minimum 369-hour Basic Law Enforcement Training Cours 
accredited by the North Carolina Criminal Justice Education and Training Commission unde 
guidelines beginning October 1 , 1984 and ending July 1, 1989 and who have been separated froi 
a sworn law enforcement position for over one year but no more than three years shall be require 
to complete the following portions of a commission-accredited Basic Law Enforcement Trainin 
Course and successfully pass the State Comprehensive Examination within the 12 mont 
probationary period as prescribed in 12 NCAC 10B .0503(a). 

(A) Laws of Arrest. Search and Seizure 16 hou 

(B) Elements of Criminal Law 24 hou 

(C) Juvenile Laws and Procedures 8 hou 

(D) Controlled Substances 6 houi 

(E) ABC Laws and Procedures 4 hour 

(F) Motor Vehicle Laws 20 houi 

(G) Civil Process 24 hour 
(H) Supplemental Custody Procedures 8 hour 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 110 hour 

i-^j Per s ons transferring to a sheriffs department from anoth e r law enforcement agency who hoi 



certification i ss ued by the North Carolina Criminal Ju s tice Education and Training Standard 



Commission and who have previously completed a commi ss ion accredited 4 10 hour Ba s ic Lav 



Enforcement Training Cour s e accredited by the North Carolina Criminal Justice Education am 



Training Standard s Commi ss ion under guidelines administered beginning July 1. 1989 and endin ; 



1003 7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



February 1 , 1991 and who have been separated from a sworn law enforcement po s ition for no more 
than one year or who have had no break in s ervice shall be required to complete the following 
enumerated topics of a commi ss ion accredited Basic Law Enforcement Training Course and 
s uccessfully pass that portion of the State Comprehensive Examination which deals with those 
subjecto within 12 months of the date of their Oath of Office as prescribed in 12 NCAC 10B 
.0503(a). 

{A) — Civil Process 2 4 hour s 

(B) — Supplemental Custody Procedures 8 hours 



TOTAL HOURS 32 hours 

(13) {44)Persons who have completed a minimum 422-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Sheriff's Education and Training Standards Commission under 
the guidelines administered beginning January 1, 1989 and ending February 1, 1991 and who have 
been separated from a sworn law enforcement position for over one year but no more than three 
years shall be required to complete the following portions of a commission-accredited Basic Law 
Enforcement Training Course and successfully pass the State Comprehensive Examination within 
the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(A) Lawss of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 1 10 hours 

(14) {4-§)Persons who have previously completed a minimum 410-hour Basic Law Enforcement Training 
Course accredited by the North Carolina Criminal Justice Education and Training Standards 
Commission under guidelines administered beginning July 1, 1989 and ending February 1, 1991 
and who have been separated from a sworn law enforcement position for over one year but no 
more than three years shall be required to complete the following portions of a 
commission-accredited Basic Law Enforcement Training Course and successfully pass the State 
Comprehensive Examination within the 12 month probationary period as prescribed in 12 NCAC 
10B .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 1 10 hours 

(15) <44)Persons who have completed a minimum 444-hour Basic Law Enforcement Training Course 
accredited by the North Carolina Sheriffs' Education and Training Standards Commission under 
the guidelines administered beginning February 1 , 1991 and who have been separated from a sworn 
law enforcement position for over one year but no more than three years shall be required to 
complete the following portions of a commission-accredited Basic Law Enforcement Training 
Course and successfully pass the State Comprehensive Examination within the 12 month 
probationary period as prescribed in 12 NCAC 10B .0503(a). 
(A) Laws of Arrest, Search and Seizure 16 hours 



10 NORTH CAROLINA REGISTER August 14, 1992 1004 



PROPOSED RULES 



24 houi 


8 houi 


6 houi 


4 houi 


20 houi 


24 houi 


8 houi 



(B) Elements of Criminal Law 

(C) Juvenile Laws and Procedures 

(D) Controlled Substances 

(E) ABC Laws and Procedures 

(F) Motor Vehicle Laws 

(G) Civil Process 

(H) Supplemental Custody Procedures 
(I) Firearms Qualification (Handgun and Shotgun Courses) 

TOTAL HOURS 1 10 houi 

(16) ft^Persons who have previously completed a minimum 432-hour Basic Law Enforcement Trainin 
Course accredited by the North Carolina Criminal Justice Education and Training Standarc 
Commission under guidelines administered beginning February 1, 1991 and who have bee 
separated from a sworn law enforcement position for over one year but no more than three yeai 
shall be required to complete the following portions of a commission-accredited Basic Lai 
Enforcement Training Course and successfully pass the State Comprehensive Examination withi 
the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(A) Laws of Arrest, Search and Seizure 16 houi 

(B) Elements of Criminal Law 24 houi 

(C) Juvenile Laws and Procedures 8 houi 

(D) Controlled Substances 6 houi 

(E) ABC Laws and Procedures 4 houi 

(F) Motor Vehicle Laws 20 houi 

(G) Civil Process 24 hou 
(H) Supplemental Custody Procedures 8 houi 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 110 hou 

(18) Persons transferring to a sheriffs department from another law enforcement agency who hoi 



certification issued by the North Carolina Criminal Justice Education and Training Standard 



Commission and who have previously completed a commission accredited 4 32 hour Basic Lai 



Enforcement Training Course aecredited by the North Carolina Criminal Justice Education an 



Training Standards Commission under guidelines administered beginning February 1, 1991 an 



who have been separated from a sworn law enforcement position for no more than one year or wh 



have no break in service shall be required to complete the following enumerated topics of 



commission accredited Basic Law Enforcement Training Course and successfully pass that portio 



of the State Comprehensive Examination which deals with these subjects within 12 months of th 

date of their Oath of Office as prescribed in 12 NCAC 10B .0503(a). 

{Aj — Civil Process 2 4 houi 



<-B) — Supplemental Custody 8 houi 



TOTAL HOURS 32 houi 



(17) {+9)Persons who have completed training as a federal law enforcement officer and are appointe 
as a sworn law enforcement officer deputy sheriff in North Carolina shall be required to complet 
a commission-accredited Basic Law Enforcement Training Course in its entirety regardless c 
previous federal training and experience and successfully pass the State Comprehensiv 
Examination within the 12 month probationary period as prescribed in 12 NCAC 10B .0503(a). 

(18) (30)Persons out of the law enforcement profession for over three years regardless of prior trainin 
or experience shall complete a commission-accredited Basic Law Enforcement Training Course i 
its entirety and successfully pass the State Comprehensive Examination within the 12 mont 
probationary period as prescribed in 12 NCAC 10B .0503(a). 

(19) f2+)Wildlife Enforcement Officers who completed the Basic Law Enforcement Training Cours 
prior to September 30. 1985 and are sworn as justice officers shall be subject to the evaluatio 
rules as stated in Ru4e 12 NCAC 10B .0505 Paragraphs (a)(1) and (a)(4) through (11). 
(33)Wildlife Enforcement Officers who separate from employment with the Wildlife Enforcemet 



1005 7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



Division and have less than one year break in service, who transfer to a Sheriff's Department in 

a sworn capacity, and who completed their Basic Training after September 30, 1985 shall complete 

the following blocs of instruction and pass the state exam in its entirety within one year of their 
date of appointment as defined in 12 NCAC 10B .0103(1). 

(A) Crime Prevention Techniques 4 hours 

(B) Mechanics of Arrest: Custody Procedure 2 hours 

(C) Mechanics of Arrest: Processing Arrestee 4 hours 

(D) Special Populations 12 hours 

(E) Techniques of Traffic Law Enforcement 6 hours 

(F) Dealing with Victims and the Public 8 hours 

(G) Civil Process 24 hours 
(H) Supplemental Custody Procedures 8 hours 
(I) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 68 hours 
(21) {2-3)Wildlife Enforcement Officers who completed Basic Law Enforcement Training on or after 
September 30, 1985 and have been out of a sworn position over one year but no more than three 
years, and are sworn as a justice officer must complete the following blocs of instructions and pass 

the state exam in its entirety during their probationary period as prescribed in J_2 NCAC 10B 
.0503(a). 

(A) Laws of Arrest Search and Seizure 16 hours 

(B) Elements of Criminal Law 24 hours 

(C) Juvenile Laws and Procedures 8 hours 

(D) Controlled Substances 6 hours 

(E) ABC Laws and Procedures 4 hours 

(F) Motor Vehicle Laws 20 hours 

(G) Crime Prevention Techniques 4 hours 
(H) Mechanics of Arrest: Custody Procedures 2 hours 
(I) Mechanics of Arrest: Processing Arrestees 4 hours 
(J) Special Populations 12 hours 
(K) Techniques of Traffic Law Enforcement 6 hours 
(L) Dealing with Victims and the Public 8 hours 
(M) Civil Process 24 hours 
(N) Supplemental Custody Procedures 8 hours 
(O) Firearms Qualification (Handgun and Shotgun Courses) 



TOTAL HOURS 146 hours 

(22) Alcohol Law Enforcement Officers who completed the Basic Law Enforcement Training Course 
prior to April 1^ 1983 and are sworn as a justice officer shall be subject to the evaluation rules as 
prescribed in 12 NCAC 10B .0505(a)(1) and (a)(4) through (9). 

(23) Alcohol Law Enforcement Officers who separate from employment with the Alcohol Law 
Enforcement Division and have less than a one year break in service, who transfer to a Sheriffs 
Department in a sworn capacity, and who completed their Basic Training after April J^ 1983 shall 
complete the following blocs of instruction and pass the state comprehensive exam in its entirety 
within one year of their date of appointment as defined in J_2 NCAC 10B ,0103( 1). 

(A) Law Enforcement Communication and Information Systems 4 hours 

(B) Patrol Techniques 16 hours 

(C) Crime Prevention Techniques 4 hours 

(D) Mechanics of Arrest: Vehicle Stops 6 hours 

(E) Mechanics of Arrest: Custody Procedures 2 hours 

(F) Mechanics of Arrest: Processing Arrestee 4 hours 

(G) Special Populations 12 hours 
(H) Interviews: Field and In-Custody 8 hours 
{1} Motor Vehicle Law 20 hours 
(J) Techniques of Traffic Law Enforcement 6 hours 



10 NORTH CAROLINA REGISTER August 14, 1992 1006 



PROPOSED RULES 



(K) Dealing with Victims and the Public 
(L) Civil Process 

(M) Supplemental Custody Procedures 
(N) Firearms Qualification 

(Handgun and Shotgun Course) 

TOTAL HOURS 



8 houi 

24 houi 

8 houi 



122 hom 
(24) Alcohol Law Enforcement Officers who completed their Basic Training after April 1, 1983 andar 



sworn as a justice office and who have been out of a sworn position for over one year but no moi 



than three years shall complete the following blocs of instruction and pass the state examination i 
its entirety during their one year probationary period as prescribed in J_2 NCAC 10B .0503(a). 

Laws of Arrest, Search and Seizure 

Elements of Criminal Law 



(A) 

tm 

(C) Juvenile Laws and Procedures 

(D) Controlled Substances 

(E) ABC Laws and Procedures 

(F) Law Enforcement Communication and Information Systems 

(G) Patrol Techniques 

(H) Crime Prevention Techniques 

(I) Mechanics of Arrest: Vehicle Stops 

(J) Mechanics of Arrest: Custody Procedures 

(K) Mechanics of Arrest: Processing Arrestee 

(L) Special Populations 

(M) Interviews: Field and In-Custody 

(N) Motor Vehicle Law 

(O) Techniques of Traffic Law Enforcement 

(P) Dealing with Victims and the Public 

(Q) Civil Process 

(R) Spplemental Custody Procedures 

(S) Firearms Qualification 

(Handgun and Shotgun Course) 

TOTAL HOURS 



16 houi 
24 houi 
8 houi 
6 houi 
4 houi 
4 houi 
16 houi 
4 houi 
6 houi 
2 houi 
4 houi 



12 houi 



8 hojH 



20 houi 
6 houi 



8 hou 
24 houi 



8 houi 



180 houi 

(b) In those instances not specifically incorporated within this Section or where an evaluation of th 
applicant's prior training and experience determines that required attendance in the entire Basic La' 
Enforcement Training Course would be impractical, the director is authorized to exercise his/her discretio 
in determining the amount of training those persons shall complete during their probationary period. 



Statutory Authority G.S. 17E-4; 17E-7. 

.0507 COMPLETION OF THE BASIC LAW 
ENFORCEMENT TRAINING 
COURSE 

(a) Each delivery of an accredited "Basic Law 
Enforcement Training Course" is considered to be 
a unit. Each trainee shall attend and satisfactorily 
complete the full course during a scheduled 
delivery. The Director may issue prior written 
authorization for a specified trainee's limited 
enrollment in a subsequent delivery of the same 
course where the trainee school director provides 
evidence that: 

(1) he trainee attended and satisfactorily 
completed specified class hours and 
topics of the "Basic Law Enforcement 



Training Course" but through extende* 
absence occasioned by illness, acciden 
emergency, or other good cause wa 
absent for more than ten percent of th 
total class hours of the course offering; c 

(2) The trainee was granted excuse 
absences by the school director that di 
not exceed ten percent of the total clas 
hours for the course offering and th 
school director could not schedul 
appropriate make-up work during th 
current course offering as specified i 
Rule 12 NCAC 10B .0506(c) due t 
valid reasons; or 

(3) The trainee participated in an offerin 
of the "Basic Law Enforcemer 



1007 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



Training Course" but had an identified 
deficiency in essential knowledge or skill 
in either one, two or three, but no more 
than three, of the specific topic areas 
incorporated in course content as 
prescribed under Rule in 12 NCAC 10B 
.0502(a). 
) An authorization of limited enrollment in a 
isequent course delivery may not be issued by 
Director unless in addition to the evidence 
uired by Paragraph (a) of this Rule: 

(1) The sheriff of the agency employing th e 
trainee submits a written request to the 
Director, justifying the limited 
enrollment and certifying that the 
trainee's participation shall be 
accomplished within the period of the 

trainee' s probationary certification 

pursuant to Subparagraph (c) of this 
Rule ; and 

(2) The school director of the previous 
course offering submits to the director 
a certification of the particular topics 
and class hours attended and 
satisfactorily completed by the trainee 
during the original enrollment. 

;) An authorization of limited enrollment in a 
isequent course delivery permits the trainee to 
:nd an offering of the "Basic Law Enforcement 
lining Course" commencing within 120 calendar 
s from the last date of trainee participation in 
or course delivery, but only if the trainee's 
ollment with active course participation can be 
:omplished within the period of the trainee's 
bationary certification: 

(1) The trainee need only attend and 
satisfactorily complete those portions of 
the course which were missed or were 
identified by the school director as 
areas of trainee deficiency in the prior 
course participation. 

(2) Following proper enrollment in the 
subsequent course offering, scheduled 
class attendance, and active 
participation with satisfactory 
achievement in the course, the trainee 
would be eligible for administration of 
the State Comprehensive Examination 
by the Commission and possible 
certification of successful course 
completion. 

i) A trainee who is deficient in four or more 

ject-matter or topical areas at the conclusion of 

course delivery shall complete a subsequent 

gram in its entirety within the trainee's 



probationary period. 

Statutory Authority G.S. 17E-4; 17E-7. 

SECTION .0600 - MINIMUM STANDARDS 
OF TRAINING FOR JAILERS 

.0603 EVALUATION FOR TRAINING 
WAIVER 

(a) The following rules shall be used by division 
staff in evaluating a jailer's training and experience 
to determine eligibility for a waiver of training: 

(1) Persons who have separated from a 
jailer position during the probationary 
period after having completed a 
commission-accredited jailer training 
course and who have been separated 
from a jailer position for more than one 
year shall complete a subsequent 
commission-accredited jailer training 
course in its entirety and successfully 
pass the State Comprehensive 
Examination within the 12 month 
probationary period as described in 12 
NCAC 10B .0602(a). 

(2) Persons who separated from a jailer 
position during their probationary 
period after having completed a 
commission-accredited jailer training 
course and who have been separated 
from a jailer position for one year or 
less shall serve the remainder of the 
initial probationary period in 
accordance with G.S. 17E-7(b), but 
need not complete an additional training 
program. 

(3) Persons who separated from a jailer 
position during the probationary period 
without having completed a jailer 
training course or whose certification 
was suspended pursuant to 12 NCAC 
10B .0204(b)(1) and who have 
remained separated or suspended for 
over one year shall complete a 
commission-accredited jailer training 
course in its entirety and successfully 
pass the State Comprehensive 
Examination, and shall be allowed a 12 
month probationary period as 
prescribed in 12 NCAC 10B .0602(a). 

(4) Persons holding General Jailer 
Certification who have completed a 
commission-accredited jailer training 
course and who have separated from a 
jailer position for more than one year 



10 NORTH CAROLINA REGISTER August 14, 1992 



1008 



PROPOSED RULES 



shall complete a subsequent 
commission-accredited jailer training 
course in its entirety and successfully 
pass the State Comprehensive 
Examination within the 12 month 
probationary period as prescribed in 12 
NCAC 10B .0602(a). 

(5) Persons holding Grandfather Jailer 
Certification who separate from a jailer 
position and remain separated from a 
jailer position for more than one year 
shall be required to complete a 
commission-accredited jailer training 
program in its entirety and successfully 
pass the State Comprehensive 
Examination within the 12 month 
probationary period as prescribed in 12 
NCAC 10B .0602(a). 

(6) Persons transferring to a sheriffs 
department from another law 
enforcement agency who hold a jailer 
certification issued by the North 
Carolina Criminal Justice Education and 
Training Standards Commission shall 
be subject to evaluation of their prior 
training and experience on an individual 
basis. The Division staff shall 
determine the amount of training 
required of these applicants. 

(7) Persons holding general certification as 
a correctional officer issued by the 
North Carolina Criminal Justice 
Education and Training Standards 
Commission and who: 

(A) completed training as a correctional 
officer after January 1^ 1981; and 

(B) transfer to a sheriffs department in a 
jailer position; and 

(C) have had less than a one year break in 
service or, no break in service shall 
serve a 12-month probationary period 
as prescribed in 12 NCAC 10B 
.0602(a) and shall complete the 
following topic areas in a 
commission -accrediated jailer 
certification course and take the state 
examination in its entirety during that 
probationary period: 

Disciplinary Procedures 
Medical Care in the Jail 



ill 
ill) 

iiii) 



iiy] 

(vi) 



2 hours 
5 hours 

Legal Rights and 

Responsibilities 12 hours 

Civil Liability 2 hours 

Suicides 4 hours 

Introduction to Rules 



and Regulations Governing 
Jail Facilities 
(vii) Handling Fire 
Emergencies 
(viii) Investigative Duties 

of the Jaile r 
(ix) Legal Aspects of 

Investigation 3 houi 



3 houi 

16 houi 

3 houi 
Crimin; 



TOTAL HOURS 50 houi 

(b) In those instances not specificall 
incorporated within this Section or where a 
evaluation of the applicant's prior training an 
experience determines that required attendance i 
the entire Jailer Training Course would 1 
impractical, the director is authorized to exercis 
his/her discretion in determining the amount t 
training those persons shall complete during the 
probationary period. 

Statutory Authority G.S. 17E-4; 17E-7. 

.0605 COMPLETION OF JAILER 
CERTIFICATION COURSE 

(a) Each delivery of an accredited "Jails 
Certification Course" is considered to be a uni 
Each trainee shall attend and satisfactoril 
complete a full course during a scheduled deliver} 
The Director may issue prior written authorizatio 
for a specified trainee's limited enrollment in 
subsequent delivery of the same course where th 
trainee school director provides evidence that: 

(1) The trainee attended and satisfactory 
completed specified class hours arj 
topics of the "Jailer Training" cours 
but through extended absenc 
occasioned by illness, acciden 
emergency, or other good cause w; 
absent for more than ten percent of tl 
total class hours of the course offerinj 
or 

(2) The trainee was granted excuse 
absences by the school director that d 
not exceed ten percent of the total claj 
hours for the course offering and tl 
school director could not schedu 
appropriate make-up work during tl 
current course offering as specified 
12 NCAC 10B .0604(c) due to val 
reasons; or 

(3) The trainee participated in an offerii 
of the "Jailer Certification Course" b 
had an identified deficiency in essenti 
knowledge or skill in either one, two < 
three, but no more than three, of tl 



1009 



7:10 NORTH CAROLINA REGISTER August 14, 1% 



PROPOSED RULES 



specified topic areas incorporated in the 
course content as prescribed under 12 
NCAC 10B .0601(b). 
i) An authorization of limited enrollment in a 
sequent course delivery may not be used by the 
ector unless in addition to the evidence required 
Paragraph (a) of this Rule: 

(1) The sheriff of the agency employing the 
trainee submits a written request to the 
Director, justifying the limited 
enrollment and certifying that the 
trainee's participation shall be 
accomplished within the period of the 

trainee's probationary certification 

pursuant to Subparagraph (c) of this 
Rule ; and 

(2) The school director of the previous 
school offering submits to the director 
a certification of the particular topics 
and class hours attended and 
satisfactorily completed by the trainee 
during the original enrollment. 

An authorization of limited enrollment in a 
sequent course delivery permits the trainee to 
nd an offering of the "Jailer Certification 
urse" commencing within 120 calendar days 
m the last date of trainee participation in prior 
irse delivery, but only if the trainee's 
ollment with active course participation can be 
omplished within the period of the trainee's 
bationary certification: 

(1) The trainee need only attend and 
satisfactorily complete those portions of 
the course which were missed or 
identified by the school director as 
areas of trainee deficiency in the proper 
course participation. 

(2) Following proper enrollment in the 
subsequent course offering, scheduled 
class attendance and active participation 
with satisfactory achievement in the 
course, the trainee would be eligible for 
administration of the State 
Comprehensive Examination by the 
Commission and possible certification 
of successful course completion. 

tutory Authority G.S. 17E-4; 17E-7. 

2CTION .0900 - MINIMUM STANDARDS 
OR JUSTICE OFFICER INSTRUCTORS 

11 SUSPENSION: REVOCATION: 
DENIAL OF JAIL INSTRUCTOR 
CERTIFICATION 



121 

£3] 

i4j 



(a) The Division may notify an applicant for 
instructor certification or a certified instructor that 
a deficiency appears to exist and attempt, in an 
advisory capacity, to assist the person in correcting 
the deficiency. 

(b) When any person certified as an instructor by 
the Commission is found to have knowingly and 
willfully violated any provision or requirement of 
theses Rules, the Commission may take action to 
correct the violation and to ensure that the 
violation does not recur, including: 

(1) issuing an oral warning and request for 
compliance; 

issuing a written warning and request 
for compliance; 

issuing an official written reprimand; 
suspending the individual's certification 
for a specified period of time or until 
acceptable corrective action is taken by 
the individual; 
(5) revoking the individual's certification, 
(c) The Commission may deny, suspend, or 
revoke an instructor's certification when the 
Commission finds that the person: 

(1) has failed to meet and maintain any of 
the requirements for qualification; or 
has failed to remain currently 
knowledgeable in the person's areas of 
expertise; or 

has failed to deliver training in a 
manner consistent with the instructor 
lesson plans; or 

has failed to follow specific guidelines 
outlined in the "Jailer Certification 
Course Management Guide" which is 
hereby incorporated by reference and 
shall automatically include any later 
amendments and editions of the 



121 



ID 



14} 



referenced materials. 
may be obtained 



This publication 
from the North 



Carolina Justice Academy, Post Office 
Drawer 99, Salemburg, North Carolina 
28385 at no cost at the time of adoption 
of this Rule; or 

has demonstrated unprofessional 
personal conduct in the delivery of 
commission-mandated training; or 
has otherwise demonstrated 
instructional incompetence; or 
has knowingly and willfully obtained, 
or attempted to obtain instructor 
certification by deceit, fraud, or 
misrepresentation . 



Statutory Authority- G.S. 1 7E-4. 



15) 

m 



10 NORTH CAROLINA REGISTER August 14, 1992 



1010 



PROPOSED RULES 



.0912 PERIOD OF SUSPENSION: 

REVOCATION: OR DENIAL OF 
JAIL INSTRUCTOR 
CERTIFICATION 

The period of suspension, revocation or denial of 
the certification of an instructor pursuant to 12 
NCAC 10B .0911 shall be: 

(1) no more than one year where the cause 
of sanction is: 

(a) failure to deliver training in a manner 
consistent with the instructor lesson 
plans; or 

(b) failure to follow specific guidelines 
outlined in the "Jailer Certification 
Course Management Guide" which is 
hereby incorporated by reference and 
shall automatically include any later 
amendments and editions of the 
referenced materials. This publication 
may be obtained from the North 
Carolina Justice Academy, Post Office 
Drawer 99, Salemburg, North Carolina 
28385 at no cost at the time of adoption 
of this Rule; or 

(c) unprofessional personal conduct or 
demonstration of instructional 
incompetence in the delivery of the 
Jailer Certification Course. 

(2) no more than five years where 



the 



more than five vk 
sanction is knowingly and willfully 
obtaining or attempting to obtain 
instructor certification by deceit, fraud, 
or misrepresentation. 
(3) for an indefinite period, but continuing so 
long as the stated deficiency, infraction, 
or impairment continues to exist, where 
the cause of sanction is: 

(a) failure to meet and maintain any of the 
requirements for qualification; or 

(b) failure to remain currently 
knowledgeable in the person's areas of 
expertise. 

Statutory Authority 17E-4. 

SECTION .2100 - JUSTICE OFFICERS' 

FIREARMS IN-SERVICE 

TRAINING REQUALIFICATION 

PROGRAM 

.2101 DEPARTMENT HEAD 
RESPONSIBILITIES 

The Department head is responsible for ensuring 
that the Justice Officers' In-Service Firearms 
Training and Requalification Program is conducted 



according to minimum specifications as outlined 
Rules .2103 and ^2434 12 NCAC 10B .2103 an 
.2104 . In addition, the Department head: 
(1) shall maintain copies of each course 
fire adopted for use by his departmet 
and shall make those courses availabl 
for review by the Commission 



£2} 



representative upon request; and 
fHshall maintain in each officer 
personnel file a copy of tfe 
Commission's a commission-approve 



Firearms Requalification Record Fori] 
which verifies that the officer did, or di 
not, successfully complete the minimuu 
annual in-service firearms trainin 
requirement; and 

(3) f2-)should, where the officer fails 
successfully qualify with any of th 
weapons specified in Rule .210 4 1 
NCAC 10B .2104 prohibit access c 
possession of such weapon while on dut 
or when acting in the discharge of th; 
agency's official duties and should den 
the officer authorization to carry sue 
weapons concealed when off-duty, excep 
when the officer is on his/her ow 
premises; and 

(4) {3)shall notify the Division within fiv 
days when an officer fails to qualif 
pursuant to Rulo .2105 

12 NCAC 10B .2105; and 



i4) shall submit in writing to the Director th 

course of fire to be utilized pursuant t 



Rule .210 4 for approval by the Director 
and such approval s hould be received b' 



the Department head from the Dirccto 



prior — te — conducting — tbe — Firearm 



(5) 



Requalification required by this Section 

flflQ 

should ensure that once each year al 
officers receive a review of department 
policies regarding the use of force. It i 
recommended by the Commission that al 
officers be tested on department* 
policies. 



Statutory Authority G.S. 17E-4; 17E-7. 

.2102 INSTRUCTORS 

The following requirements and responsibilitie 
are hereby established for instructors who conduc 
the Justice Officers' In-Service Firearms Trainin: 
and Requalification Program: 

(1) he instructor shall hold "Specifi 
Instructor Certification-Firearms" issue* 



1011 



7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



by the North Carolina Criminal Justice 
Education and Training Standards 
Commission; 

) The instructor shall deliver the training 
consistent with the minimum 
specifications as established by Rules 
.2103 and .210 4 12 NCAC 10B .2103 
and .2104 ; 

The instructor shall document the 
successful or unsuccessful completion of 
training for each officer on a 
commission-approved Firearms 
Requalification Record Form and forward 
such form to each officer's department 
head.; 

] The instructor shall submit to the agency 
head copies of all courses of fire used for 
qualification of justice officers in 
compliance with 12 NCAC 10B .2101(1). 

utory Authority G.S. 17E-4; 17E-7. 



03 MINIMUM TRAINING 
REQUIREMENTS 

) In order to qualify for commission approval 
In-Service Firearms Training and 
|ualification Program shall include, at a 
dmum, the mandated course of fire as specified 
Rule .210 4 following specified topics: 

areas to be included but not limited 



) Topical 



trer 

(1) Use of Force: 

(A) review the authority to use deadly 
force [G.S. 15A-401 (d)(2)] including 
relevant case law and materials. 

(2) Safety: 

(A) Range rules and regulations; 

(B) Handling of a firearm; 

(C) Malfunctions. 

(3) Review of Basic Marksmanship 
Fundamentals: 

(A) Grip, stance, breath control and 
trigger squeeze; 

(B) Sight and alignment/sight picture; 

(C) Nomenclature. 

(4) Operation and Maintenance of all 
authorized weapons. 

>) {e)The Commission recommends that 
ients be tested on the authority to use deadly 
e. 

Q {d)The Specialized Firearms Instructor shall 
:h the same training objectives for the topical 
as listed in Rule .2103(b) this Rule as specified 
the Specialized Firearms Instructor Training 
nual published by the North Carolina Justice 



Academy which is hereby adopted incorporated 
by reference and shall automatically include any 
later amendments and editions of the adopted 
matter referenced materials as authorized by G.S. 
150B 1 4 (c) as the approved source for the above 
mandated topical areas. Copies of this publication 
may be obtained from the North Carolina Justice 



Academy, Post 
North Carolina 



Office Drawer 99, 
28385. There is 



Salemburg. 
no cost per 



manual at the time of adoption of this Rule. 

Statutory Authority G.S. 17E-4; 17E-7. 

.2104 IN-SERVICE FIREARMS 

REQUALIFICATION 
SPECIFICATIONS 

(a) All justice officers who are authorized by the 
sheriff to carry a handgun shall qualify a minimum 
of once each year with each handgun that the 
officer is authorized to carry while on duty on a 
commission-approved day and night course. The 
course of fire shall not be less stringent than the 
"Basic Law Enforcement Training Course" 
requirements for firearms qualification. 

(b) All justice officers who are issued, or 
otherwise authorized by the sheriff to carry a 
shotgun, rifle, or automatic weapon shall be 
required to qualify with each weapon respectively 
a minimum of once each year on a 
commission-approved course of fire. 

(c) Qualifications conducted pursuant to 
Paragraphs (a) and (b) of this Rule shall be 
completed with duty equipment and duty 
ammunition or duty-type ammunition meeting the 
specifications of the duty ammunition as to type 
projectile, weight and velocity. 

(d) (e)All justice officers who are authorized by 
the sheriff to carry off duty handguns shall qualify 
with their off duty handgun a minimum of once 
each year pursuant to Rule .210 4 (a) 12 NCAC 10B 
.2103 and .2104(a) and (b) with each handgun the 
officer carries off duty using ammunition approved 
by the sheriff. 

(e) (d)All justice officers who are issued or have 
access to any weapons not stated in this Rule must 
qualify with these weapons once each year using 
ammunition approved by the sheriff. The course 
of fire must be submitted and approved by the 
Director prior to qualification. 

(f) -fe)In cases where reduced-sized targets are 
used to simulate actual distances, a modified 
course of fire may be used. The propo s ed cour se 
of fire mu s t be s ubmitted to and approved by the 
Director prior to qualification. 

(g) (f)To satisfy the minimum training 



10 NORTH CAROLINA REGISTER August 14, 1992 



1012 



PROPOSED RULES 



requirements for all in-service firearms 
requalifications, a justice officer shall attain a 
minimum qualification score of 70 percent 
accuracy with each weapon once in three attempts 
with no more than three attempts on each course 
of fire per day. 

£h] {g^The "In-Service Firearms Qualification 
Manual" as published by the North Carolina 
Justice Academy is hereby incorporated by 
reference, and shall automatically include any later 
amendments or editions of the referenced materials 
to apply as a minimum guide for conducting the 
annual in-service firearms qualification. Copies of 
the publication may be obtained from the North 
Carolina Justice Academy, Post Office Drawer 99, 
Salemburg, North Carolina 28385. There is no 
cost per manual at the time of adoption of this 
Rule. 

Statutory Authority G.S. 17E-4; 17E-7. 

.2105 FAILURE TO QUALIFY 

(a) Justice officers who fail to qualify pursuant 
to Rule .2104 should immediately surrender their 
weapons to the sheriff and shall have 30 days in 
which to obtain the qualification score required in 
Rule .210 4 12 10B .2104. 

(b) Failure to qualify within the 30 day time 
period allowed in Rule .2105(a) JJ2 NCAC 10B 
.2105(a) will result in the summary suspension of 
the justice officer's certification by the 
Commission. 

(c) No justice officer summarily suspended 
under Paragraph (b) of this Rule and in compliance 
with 12 NCAC 10B .0206(a) (3) may work as a 
certified justice officer until: 

(1) the sheriff forwards to the Commission 
documentary evidence verifying that the 
officer has complied with the 
requirements of Rules .2103 and .210 4 
\2 NCAC 10B .2103 and .2104 : and 

(2) the justice officer and the sheriff 
receive from the Commission 
documentation that the Commission has 
terminated the suspension and reissued 
reinstated the certification to the 
s u s pended justice officer. 

(d) Any justice officer previously unauthorized 
to carry a weapon but whose status changed to 
"authorized to carry a weapon," must comply with 
the provisions set out in Rule s .2103 and .210 4 12 
NCAC 10B .2103 and .2104 ; and may not carry a 
firearm until: 

(1) the sheriff forwards to the Commission 
documentary evidence verifying that the 



officer has complied with 
requirements of Rules .2103 and .2^ 
\2 NCAC 10B .2103 and .2104 : anc 
(2) the justice officer and the sher 
receive from the Commissi) 
documentation that the Commission h 
amended the officer's status 
"authorized to carry a weapon" and 
certification files reflect the same. 

Statutory Authority G.S. 17E-4; 17E-7. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

l\otice is hereby given in accordance with G. 
150B-21.2 that the DEHNR - Division 
Environmental Management intends to amei 
rule(s) cited as 15 A NCAC 2B .0503 - .05C 
.0508. 

1 he proposed effective date of this action 
February 1, 1993. 

1 he public hearing will be conducted at 7:( 
p.m. on September 9, 1992 at the Ground Flo 
Hearing Room, Archdale Building, 512 1 
Salisbury Street, Raleigh, N. C. 

Ixeason for Proposed Action: The existing rul 
have been in need of updating for several year 
Changes are needed to meet EPA requirements, 
achieve a higher level of water quality protecti 
and achieve a more equitable implementation 
the monitoring program. 

(comment Procedures: All persons interested 
this matter are invited to attend the hearin 
Comments, statements , data and other informatk 
may be submitted in writing prior to, during 
within 30 days after the hearing or may I 
presented orally at the hearing. Oral statemen 
may be limited at the discretion of the hearit 
officer. Submittal of written copies of or 
statements is encouraged. For more informatk 
about the rules, contact Dennis Ramsey or Boy 
DeVane, Division of Environmental Managemen 
P.O. Box 29535, Raleigh. NC 27626-0535, (91 
733-5083. For copies of the rules, contact Lint 
Jones or Kay Stallings at the same number ar 
address. 



1013 



7:10 NORTH CAROLINA REGISTER August 14, 1% 



PROPOSED RULES 



Us Rule affects the expenditures or revenues of 
il funds. A fiscal note was submitted to the 
cal Research Division on July 21, 1992, 
BM on July 13, 1992, N.C. League of 
nicipalities on July 21, 1992, and N.C. 
ociation of County Commissioners on July 21, 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

iUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0500 - SURFACE WATER 
MONITORING: REPORTING 



03 DEFINITIONS 

nless the context otherwise requires, the terms 
d herein shall be as defined in G.S. 143-213 
as follows: 



^) "Actual flow" means the total volum e of 

wastewat e r — discharg e d — from — a — point 
source in any calendar month divid e d by 
the number of days during the month in 
which discharge occurred. 



3) "Bioassay — monitoring" — means — tests 

employed — te — determin e — the — effluent 
concentration, — express e d as a p e rcent 
volume, that is l e thal to 50 percent of th e 
organisms within a prescrib e d p e riod of 
time. Such tests may includ e cither static 
and/or flow through methodologi e s for 
acute evaluations and may also include 
chronic tests if warranted 

i\) "Biological monitoring" shall mean the 
determination of th e e ff e ct s on aquatic 
lif e , including accumulation of pollutants 
in tissue, in rec e iving wat e rs du e to th e 
discharg e of pollutants by t e chniques and 

proc e dures, including — sampling — ef 

organisms r e pr e s e ntativ e of appropriat e 
l e vels of the food chain appropriat e to th e 
volume and the phy s ical, ch e mical, and 
biological charact e ri s tic s of a wa s t e water 
efflu e nt sampling or testing of the 
biological integrity of surface waters and 
measurements of impacts including 
accumulations of pollutants in tissue, 
toxicity monitoring, and characterization 
of instream biological populations . 

42) "Classified water pollution control 
facility" means a treatment works 
classified by the Wa s tewat e r Treatm e nt 



Plant Operator s Certification Commission 
Water Pollution Control System Operator 
Certification Commission pursuant to 
Chapter 90A of the North Carolina 
General Statutes as class I, class II, class 
III, or class IV facility, or such other 
classifications system as the Water 
Pollution Control System Operator 
eCertification eCommission may 
hereafter adopt. 

(S3) "Commercial laboratory" means any 
laboratory which analyzes water samples 
for a fee. 

(64) "Composite sample" meansTi as — a 
minimum, either a combination of four or 
more multiple grab samples or a single 
sample collected continuou s ly during the 
complete period of daily di s charge. — The 
volume of each grab sample or the rate 
of collection of the continuou s ly collected 
sample shall be in direct proportion to the 
rate of flow during the time of collection. 
Where the rate of flow docs not vary 
significantly, grab sample s may mu s t be 
of equal size taken at equal intervals of 
time. Note: Sec .0505 (c)(3)(B) for 
details , combining grab samples in such 
a manner as to result in a total sample 
which is representative of the wastewater 
discharge during the sample period. This 
sample may be obtained by methods 
given below, however, the Director may 
designate the most appropriate method, 
number and size of aliquots necessary 
and the time interval between grab 
samples on a case-by-case basis. Samples 
may be collected manually or 
automatically. 

(a) Continuous - a single, continuous 
sample collected over a 24 hour period 
pro portional to the rate of flow. 

(b) Constant time/variable volume - a series 
of grab samples collected at equal time 
intervals over a 24 hour period of 
discharge and combined proportional to 
the rate of flow measured at the time of 
individual sample collection, or 

(c) Variable time/constant volume - a series 
of grab samples of equal volume 
collected over a 24 hour period with the 
time intervals between samples 
determined by a preset number of 
gallons passing the sampling point. 
Flow measurement between sample 
intervals shall be determined by use of 



10 NORTH CAROLINA REGISTER August 14, 1992 



1014 



PROPOSED RULES 



a flow recorder and totalizer, and the 
present gallon interval between sample 
collection fixed at no greater than 1/24 
of the expected total daily flow at the 
treatment system, or 
(d) Constant time/constant volume : a 
series of grab samples of equal volume 
collected over a 24 hour period at a 
constant time interval. This method 
may be used in situations where flow 
effluent rates vary less than 15 percent. 
The grab samples shall be taken at 
intervals of no greater then 20 minutes 
apart during any 24 hour period and 
must be of equal size and of no less 
than 100 milliliters. Use of this method 
requires prior approval by the Director. 

(75 ) "Daily" means every day on which a 
wastewater discharge occurs except 
Saturdays, Sundays and legal holidays 
unless otherwise specified by the 
Director . 

(86) "Design flow" means the average daily 
volume of wastewater which a water 
pollution control facility was designed, 
approved and constructed to treat. 

(97) "Design treatment capability" means the 
capability of a water pollution control 
facility to adequately treat a s pecified 
wastewater — flow, — and — a — designated 
quantity of organic wa s te s and suspended 
and — dissolved — s olid — wastcs a water 
pollution control facility's capacity to 
achieve a specified degree of reduction in 
waste constituents at a specified design 
flow, to meet specified limits or removal 
efficiencies. 

(+08) "Director" means the Director of the 
Division of Environmental Management, 
Department of Natural — Resources and 
Community Development Environment, 
Health, and Natural Resources . 

(449) "Division" means the Division of 
EnvironmentalManagement. Department 
of Natural — Re s ources and — Community 
Development Environment, Health, and 
Natural Resources . 

(4-310) "Domestic sewage wastewater " means 
water-carried human wastes together with 
all other water-carried wastes normally 
present in wastewater from residences 
used exclusively for human habitation 
non-industrial processes . 

(441 1) "Downstream" means a locations in the 



receiving waters below (downstream 01 
a point of waste discharge after 
reasonable opportunity for dilution an 
mixture as specified in the Commission 
"Rules, Regulations, Classifications an 
Water Quality Standards Applicable t 
the Surface Waters of North Carolina." 
(4412) "Effluent" means wastewater discharge 
followingall treatment processes from 
water pollution control facility or othe 
point source whether treated or untreated 
Flow" means the total volume 



(13) 
(4414) 



(+615) 
(WIS 

(43E7) 



wastewater discharged from an outle 

during any given period. 

"Grab sample" means an individua 

sample collected instantaneously 

Samples of this type must 

representative of the discharge or th 

receiving waters. 

"Industrial establishment" means an 

industrial, business, commercial 

governmental enterprise which produce 

water carried wastes. 

"Influent" means the wastewater enterin 

a water pollution control facility. 

"Monitoring" means a program of sampl 

collection,,, and analysis.! and observatio 



sufficient to determine the volume o 



influent and effluent flow of a watc 
pollution control quantify various aspect 
of waste streams, treatment plan 
operations and environmental impacts 



facility or other point source; the natun 
ef- — waste — contained — therein; — and th 



effects — ©fl — receiving — waters — of wast 



discharged thereto; or. in the case o 
s eptic tank nitrification [me — typ 



wastewater — disposal — systems, — visua 
observation. 

(4918) "Point source" means any discernible 
confined, and discrete conveyance 
including, but not specifically ftet limite< 
to, any pipe, ditch, channel, tunnel 
conduit, well, discrete fissure, container 
rolling stock, or concentrated anima 
feeding operation from which waste is o 
may be discharged to the waters of th 
state. 

(3019) "Quarterly" means occurring four time 
during a 12-month period at a frequenc\ 



(20) 



of once per each intervals of thret 

consecutive months. 

"Quarterly Average" means the average 



of all samples taken over a quarterh 
period. 



1015 



7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



D 



23) 



124) 



"Sample" means a small representative 
portion of the wastewater influent, 
wastewater effluent from water pollution 
control facilities or of receiving waters. 
"Standard ^Industrial eClassification" 
(SIC) means those numerical designations 
set forth in "The Standard Industrial 
Classification Manual, 1972 
(Superintendent of Documents, U.S. 
Government Printing Office) classifying 
industries according to the type of 
activity (relating to major products 
manufactured or principle services 
furnished) in which they are engaged. 
For the purposes of this Section, each 
industry or unit of government shall be 
classified by SIC numbers applicable to 
each activity carried on by such 
establishment or unit which results in a 
discharge of wastewater. In addition, 
any industrial establishment or unit of 
government which collects or discharges 
domestic sewage is hereby assigned SIC 
number 9999 4952 . -The Standard 
Industrial Classification Manual, 1972 , as 
used in this Section, is hereby 
incorporated by reference-, including any 
subsequent amendments and editions may 
be available in public libraries and ^ a A 
copy is available for reference inspection 
at the field aftd central offices of the 
Department of Natural — Resources and 
Community — Development Division of 
Environmental Management, 512 North 
Salisbury Street, Raleigh, North 



Carolina. Copies ma 
GPO Bookstore. Room 



be obtained at the 
100, 275 



Peachtree Street NE, or Post Office Box 
56445, Atlanta GA 30343 at a cost of 
twenty-four ($24.00) . 
"Storet number" means a number 
appearing in the "Water Quality Control 
Information System — Handbook" — (U.S. 
Environmental Protection Agency) which 
designates a test or measurement 
according to the analytical procedure 
used or a method of measurement and 
units of measurement. Storet is an 
acronym for the water quality data 
storage and retrieval computer system of 
the Environmental Protection Agency. 
"Toxic waste substances " means those 
wastes any substance , or combinations of 
wastes substances , including disease- 
causing agents, which, after discharge, 



and upon exposure, ingestion, inhalation, 
or assimilation into any organism, either 
directly from the environment or 
indirectly by ingestion through food 
chains, w+H — cause — death, — disease, 
behavioral abnormalities, cancer, genetic 
mutations, — physiological — malfunctions 
(including malfunctions in reproduction), 

ef physical deformities, m such 

organisms — or their offspring. Toxic 

substance s include, by way of illustration 

aed — net — limitation: lead^ — cadmium. 

chromium, mercury, vanadium, arsenic, 
molybdenum, antimony, nickel, barium, 
beryllium, copper, selenium, zinc, ortho 
nitro ch lorobenzene — (ONC B) , 
polychlorinatcd byphcnyl s (PCB's) and 
dichlordiphenyl trichloroethant — (DDT); 
and any other materials that have or may 
hereafter be determined to have toxic 
propertie s has the potential to cause 
death, disease, behavioral abnormalities, 
cancer, genetic mutations, physiological 
malfunctions (including malfunctions or 
suppression of reproduction or growth) or 
physical deformities in such organisms or 
their offspring or other adverse health 
effects . 
(25) "Toxicity monitoring" means controlled 
toxicity testing procedures employed to 
measure lethality or other harmful effects 
as measured by either aquatic populations 
or indicator species used as test 
organisms from exposure to a specific 
chemical or mixture of chemicals (as in 
an effluent) or ambient stream conditions . 

(2S6) "Unit of government" means any 
incorporated city, town or village, 
county, sanitary district, metropolitan 
sewerage district, water or sewer 
authority, special purpose district, other 
municipality, or any agency, board, 
commission, department or political 
subdivision or public corporation of the 
state, now or hereafter created or 
established, empowered to provide 
wastewater collection systems or 
wastewater treatment works. 

(261) "Upstream" means a locations in the 
receiving waters near but above 
(upstream of) a point a wastewater 
discharge and unaffected by the 
discharge. 

(278) "Water pollution control facilities" or 



10 NORTH CAROLINA REGISTER August 14, 1992 



1016 



PROPOSED RULES 



"facility" means "treatment works" as 
defined in G.S. 143-213. 

Statutory* Authority G.S. 143-213; 143-215.68. 

.0504 CLASSIFICATION OF WASTE 
SOURCES 

(a) All persons subject to the requirements of 
these Rules regulations shall determine the 
standard industrial classification (SIC) number for 
each type of activity (required to be reported under 
Rule .0506 of this Section) in which they are 
engaged by reference to the Standard Industrial 
Classification Manual, 1972 . Copies — of the 
manual may be available in public libraries and a 
copy is available for at the regional and central 
office s — of — the — Division — ef- — Environmental 
Management. 

(b) Environmental Management Commission 
hereby assigns SIC number 9999 4952 to every 
industrial establishment or unit of government 
which collects or discharges domestic sewage 
wastewater , whether from on-premises bathrooms, 
restrooms, kitchens, dining rooms, water pollution 
control facilities, or from any other source. 

(c) The owner or person in responsible charge 
of every water pollution control facility i which 
receives a wastewater influent from more than one 
source i shall determine and report to the 
Department of Natural Resources and Community 
Development Environment, Health, and Natural 
Resources the name and standard industrial 
classification number(s) for each applicable 
activity(ies) of every industrial establishment 
contributing wastes containing toxic materials 
substances , in toxic quantities, and also every 
industrial establishment contributing an average 
daily wastewater influent of one percent or more 
of the design flow of the facility or in excess of 
100,000 gallons per day, whichever is less, and 
shall report such other information as is required 
by Rule Regulation .0505 of this Section; 
provided; however, that it is not required that the 
name and SIC number of any source contributing 
domestic sewage influent only be reported 
hereunder. 

(d) The average daily influent volume 
contributed by any one source may be computed 
by dividing the total estimated volume of 
wastewater discharged by the source during the 
reporting year by the total number of days that the 
source operated during the reporting year. 

Statutory Authority G.S. 143-215.64; 143-215.68. 



.0505 MONITORING REQUIREMENTS 

(a) General. Every person subject to th: 
Section shall be required to establish, operate an 
maintain a monitoring program consistent wit 
their NPDES National Pollutant Discharg 
Elimination System (NPDES) Permit or 
required by the Director . 

(b) Wastewater and Stream Flow Measuremen 
(1) A device or method, approved by tl 

Director for determining the rate 
flow of all discharges of wastewats 
whether treated or untreated shall t 
provided at those point sources 
which monthly reports of monitorin 
tests and measurements are require 
unless specifically excepted by tfc 
Director as not significant. All wati 
pollution control facilities shall instal 
operate, and maintain continuous flo 
measuring with recording devices ( 
totalizing devices, if approved by th 
Director, or shall employ other flo 
measuring or flow control methoc 
approved by the Director and sha 
submit monthly reports of such data 
required in Rule .0506 of this Sectioi 
The permittee shall install approprial 
flow measurement devices consistei 



with approved engineering an 
scientific practices to ensure th 
accuracy and reliability 
measurements of the volume o 
monitored discharges. Devices selecte 
shall be capable of measuring flow 



with a maximum deviation of less tha 
10 percent 
volumes. Flow 



from true discharg 
measurement device 



shall be accurately calibrated at 
minimum of once per year an 
maintained to ensure that the accurac 



of the measurements is consistent wit 
the accepted capability of that type o 
device. The flow measurement devic 



and location shall be approved by th 
Director prior to installation. Record 



of flow measurement device calibratio 



shall be kept on file by the permitte 



iA} 



for a period of at least three years. A 

a minimum, data to be included in thi 

documentation shall be: 

Date of flow measurement devic 



calibration 

Name of person performin 
calibration. 
(2) A reading of the U.S. Geologic; 



1017 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



Survey stream flow staff gauge or 
reference point shall be made at the 
time of stream sampling in those 
instances where so determined to be 
needed by the Director. 
) Sampling. 

(1) Frequency and Location. Except as 
otherwise provided herein, all industrial 
establishments and units of government 
shall take influent, effluent and stream 
samples at such locations and with such 
frequency as shall be necessary to 
conduct the tests and analyses required 
by Rule .0508 of this Section. 

(2) Establishment of Sampling Points: 

(A) Sampling points as required in Rule 
.0508 of this Section shall be 
established for collecting influent and 
effluent samples for each facility. 

(B) Sampling points shall be established 
in the receiving waters at one or more 
upstream locations and at least one or 
more btrt — net — more — than — three 
downstream locations^ These 
locations shall be specified by the 
Director, adequate in the opinion of 
the Director to measure impact of the 

discharge ©fl receiving waters ; 

provided that if the receiving waters 
are — subject — te — tidal — influence, — the 
Director may require two upstream 
sampling points. 

— (€} — Personnel of the Division shall be 



contacted to — assist in locating the 
sampling points. 
(3) Collection of Samples: 

(A) Samples collected in receiving waters 
shall be grab samples. 

(B) Samples of the influent and effluent of 
the water pollution control facility or 
other point source shall be composite 
samples, except as provided in Rule 
.0505 (c)(3)(C) of this Section, or for 
facilities with design flows of 30,000 
gallons per day or less when 

determined unnecessary unless 

required by the Director. If the 
composite sample is obtained from 

grab samples, the following 

requirements apply. The intervals 

between — influent grab samples shall 
be — ne — greater The Director may 
specify the methods of sample 
collection as to type of sample and 
type of composite sampling required. 



than — hourly. Interval s — between 

effluent — gfab — s ample s — shall — be — n© 
greater than hourly except where the 
detention time of the wastewater in 
the facility is greater than 2 4 hours, 
in which case, the interval between 
grab sample s s hall be no greater in 
number of hours than the detention 
time in number of days; provided, 
however, in no ea s e may the time 
between — e ffluent — gfab — samples — be 
gr e ater than six hour s nor the number 
of grab samples less than four during 
any discharge period of 2 4 hours or 

10S9 . 

(C) The following influent and effluent 
tests shall be made on grab samples 
which shall be collected during the 
period of maximum flow, and shall 
not be made on composite samples: 

(i) dissolved oxygen, 

(ii) temperature, 

(iii) settleable matter, 

(iv) turbidity, 

(v) P H, 

(vi) residual chlorine, 

(vii) coliform bacteria (fecal or total) 

(viii) cyanide, 

(ix) oil and grease^ 

(x) sulfides, 

(xi) phenols, 

(xii) volatile organics. 

(4) tf- — -the — Director — approve s — identical 

sampling points on — receiving waters 
for two or more facilitie s , the facilities 
may collaborate in operating s tream 
s ampling point s 
(§4) Stream sampling may be discontinued at 
such times as flow conditions in the 
receiving waters or extreme weather 
conditions will result in a substantial 
risk of injury or death to persons 
collecting samples. In such cases, on 
each day that sampling is discontinued, 
written justification for the 
discontinuance shall be attached — te 
specified in the monitoring report for 
the month in which the event occurred. 
This provision shall be strictly 
construed and may not be utilized to 
avoid the requirements of this Section 
when performance of these 
requirements is feasible attainable . 
When there is a discontinuance pursuant 
to this provision, stream sampling shall 



10 NORTH CAROLINA REGISTER August 14, 1992 



1018 



PROPOSED RULES 



be resumed at the first opportunity after 
the risk period has ceased. 

(d) Biological and Bioas - say Toxicity 
Monitoring. Biological and Bioassny Toxicity 
monitoring may be required when, in the opinion 
of the Director, such monitoring is necessary to 
establish whether the designated best use of larger 
rivers, — bodies or impoundments of water, the 
waters as determined by the Environmental 
Management Commission, is being or •mH may be 
impaired or when toxic effluents substances are 
known or suspected to exist at a facility be present 
in the facility's discharge . 

(e) Tests and Analyses. 

(1) If a water pollution control facility 
receives waste influent from two or 
more sources, every test required by 
Rule .0508 of this Section for the 
standard industrial classification number 
applicable to the sources shall be 
performed one time, and it shall not be 
necessary to repeat such tests for each 
source; however, the tests shall be 
performed at the intervals specified by 
Rule .0508 of this Section for the 
applicable industrial classification 
requiring the most frequent test 
interval. 

(2) If analyses of samples of any effluent or 
any receiving water (collected by the 
state or a public agency) indicate a 
violation of effluent limitations^ or 
water quality standards or indicate 
exceedances of stream action levels or 
that a violation ef of water quality 
standards or exceedances of stream 
action levels may result under any 
projected conditions including minimum 
stream flow and temperature extremes, 
the Director may require the person 
responsible for the violation or potential 
violation to monitor the pollutants or 
parameters at such points and with such 
frequency as he determines appropriate. 
If the source of the pollutant is 
unknown, the Director may require att 
persons — that he determines — nay — be 
discharging each pollutant to monitor 
for it monitoring for specific pollutants 
from any suspected discharger. 

(3) If the wastewaters discharged by any 
water pollution control facility violate 
any effluent limitations or water quality 
standards or exceeds any stream action 
levels or contribute to the violation of 



(4) 



water quality standards or exceedanr. 



of stream action levels established b 
the Environmental Manageraen 
Commission the facility shall perfoni 
and report such additional tests an 
measurements at such frequencies ani 
for such periods of time as the Directo 
may direct require . 
Approved Methods of Analysis. Th 
methods used in collection, preservatio 
and analysis of samples shall conforn 
to the guidelines of the Environment* 
Protection Agency codified as 40 CFI 
Part 136, which afe as — amende 
through — June — h — 198 4 . js hereb 
incorporated by reference including an 



subsequent amendments and editions 
Copies may be obtained from the Nev 
Orders, Superintendent of Documents 



PO Box 371954, Pittsburgh, PA 15250 



7954 at a cost of three hundred fort 
dollars ($340.00) per edition. Th 
single volume containing 40 CFR Pai 
136 may be obtained at a cost of thirr 
dollars ($30.00). Other analytica 
procedures shall conform to those foun 
in either the Fourteenth Edition mo; 
recent approved edition of "Standan 
Methods for the Examination of Wate 
and Wastewater", 1975, (publishe 
jointly by the American Public Healt 
Association, the American Wate 
Works Association, and the Wate 

Pollution Control Environmen 

Federation), or "Methods for Chemica 
Analysis of Waters and Wastes ",¥& 
1983 , or subsequent editions (prepare 
by the U.S. Environmental Protectioi 
Agency and available from th 
Superintendent of Documents, U.S 
Government Printing Office) whicl 
areadoptcd by reference. ^ or othe 



methods as approved by the Director 



Standard Methods for the Examinatioi 
of Water and Wastewater is hereb' 



incorporated by reference including an' 



subsequent approved amendments an< 
approved editions. Copies may b 
obtained from the American Wate 



Works Association, 6666 West Ouinc 
Avenue, Denver CO 82535 at a cost o 
one hundred sixty dollars ($1 60.00) pe 
edition. Methods for Chemica 

of Waters 



Analysis 

hereby incorporated 



and 
by 



Wastes i_ 
refereno 



1019 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



including any subsequent amendments 
and editions. Copies may be obtained 
from the NTIS, 5285 Port Royal Road, 
Springfield, VA 22161 at a cost of fifty 
dollars ($50.00) per edition. All 
material incorporated by reference in 
this Rule is available for inspection at 
the Central office of the Division of 
Environmental Management, 512 North 
Salisbury Street, Raleigh, North 
Carolina. All test procedures must 
produce minimum detection and 
reporting levels that are below the 
permit discharge requirements and all 
data generated must be reported down 
to the minimum detection or lower 
reporting level of the procedure. If no 
approved methods are determined 
capable of achieving minimum detection 
and reporting levels below permit 
discharge requirements, then the most 
sensitive (method with the lowest 
possible detection and reporting level) 
approved method must be used. 
Biological testing shall be performed in 
accordance with 15A NCAC 
2B.0103(b). 
(5) Approval of Laboratories. Analytical 
determinations made pursuant to the 
monitoring and reporting requirements 
of this Section shall be made in 
adequately equipped laboratories staffed 
by person(s) competent to perform 
tests. Only monitoring programs which 
provide for the making of analytical 
determinations by qualified employees 
of the owner or by a laboratory 
certified by the Division under 15A 
NCAC 2H .0800 or L5A NCAC 2H 
.1 100 will be considered adequate. 
fj Process Control Monitoring Testing: The 
rector may require, on a case-by-case basis. 



Jcess control monitoring testing suitable for the 



e and classification of the facility. 

nutory Authority G.S. 143-215.64; 143-215.66; 
3-215.68. 

506 REPORTING REQUIREMENTS 

a) General : 
(1) Every person subject to this Section 
shall file certified monitoring reports 
setting forth the results of tests and 
measurements conducted pursuant to 
NPDES permit monitoring 



requirements. 

(A) Monthly monitoring reports shall be 
filed no later than 30 calendar days 
after the end of the reporting period 
for which the report is made. 

(B) Reports filed pursuant to the 
requirements of Subdivision (a)(1) of 
this Rule shall be of forms furnished 
or approved by the Director and shall 
be submitted in duplicate to^ the 
Divi s ion at its main office in Raleigh 
ATTN: CENTRAL FILES 
DIVISION OF ENVIRONMENTAL 

MANAGEMENT 
DEHNR 

POST OFFICE BOX 29535 
RALEIGH, NORTH CAROLINA 

27626-0535 . 

(C) A copy of all reports submitted to the 

Director pursuant to — this Section 

shall be retained by the owner of each 
water pollution control facility for a 
period of at least three years from the 
date of submission. — A maximum of 
three copie s of Annual Report Forms 
and 36 copies of necessary Monthly 
Report Forms will be furnished per 
year by the Division for each point 
source subject to the provisions of this 
Section . In order to document 
information contained hi re ports 
submitted to the Director pursuant to 
this section, the owner of each 
pollution control facility is required to 
retain for a period of at least three 
years from report submission and 
have readily available for inspection 
by the Division, the following items: 

(i) a copy of all reports submitted to 
the Director; 

(ii) the original laboratory reports 
from any certified laboratory 
utilized for sample analysis. Such 
reports must be signed by the 
laboratory supervisor, and must 
indicate the date and time of 
sample collection and analysis, 
and the analysts' name; 

(iii) bench notes and data logs for 
sample analyses performed by the 
pollution control facility staff or 
operator in responsible charge, 
whether or not the facility has a 
certified lab; and 

(iv) copies of all process control 



10 NORTH CAROLINA REGISTER August 14, 1992 



1020 



PROPOSED RULES 



testing. 
(D) In situations where no discharge has 
occurred from the facility' during the 
report period, the permittee is 
required to submit a monthly 
monitoring report giving all required 
information and indicating "NO 
FLOW" unless the Director agrees to 
waive the reporting requirement 
during extended conditions of no 
discharge. 

(2) Ever}' person subject to this Section 
shall report by telephone or telegraph to 
either the central office or appropriate 
regional office of the Division 
(telephone numbers will be furnished by 
the — department) — normally — within — a 
period of 2 4 hour sas soon as possible 
but no later than 24 hours after 
occurrence or on the next working day 
(however, if the occurrence is one 
which may endanger the public health, 
or fish or wildlife, and contact with the 
central office or the appropriate 
regional office cannot be made, such 
person shall report as soon as possible 
to the State Highway Patrol Warning 
Point in state 1-800-662-7952 or out of 
state 919-733-3861 ) following the 
occurrence or first knowledge of the 
occurrence of any of the following: 

(A) Any failure of a collection system, 
pumping station or treatment facility 
resulting in a by-pass direetly — te 
receiving waters without treatment of 
all or any portion of the influent to 
such station or facility wastewater . 

(B) Any occurrence at the water pollution 
control facility which results in the 
discharge of inadequately treated 
wastewater or significant amounts of 
wastes which are abnormal in quantity 
or characteristic, such as the dumping 
of the contents of a sludge digester, 
the known passage of a s4ttg — ef 
hazardous substance through the 
facility,, or any other unusual 
circumstances. 

(3) Persons reporting such occurrences by 
telephone or telegraph shall also file 
provide a written report to the Division 
in letter form setting out the 
information required in Subdivision 
(a)(4) of this Regulation Rule and 
pertinent information pertaining to the 



occurrence^ This report must be 
received by the Division within iS five 
days following first knowledge of thf 
occurrence. 
(4) All reports required to be filed by thi: 
Section shall contain the following 
information in addition to such othe 
information as is required for the 
particular report: 
name of facility, governmental unit e 



(A) 
(B) 

(Q 
(D) 



industrial establishment, 
designation of water pollution contro 



watei 



facility 



by flu 

Health 



Natura 



(E) 
IB 



facility and location, 
the class assigned to the 
pollution control facility, 
the water pollution contro! 
permit number assigned 
Department of Environment 
and Natural Resources 

Resources a-n-d Community 

Development to the permit or othei 

approval document issued by thf 

Environmental Managemen 

Commission under which the 

discharge is made^ 

contact name and telephone numbei 

and mailing address, 

nature and extent of environment 



(5) 



damage causedthe incident. 
Any person desiring confidentiality foi 
any influent information submitted shal 
specify the influent information foi 
which confidentiality is sought and shal 
justify such request to the Department 
of Natural Resources and Community 



Development Environment, Health, anc 



Natural Resources , and if approve* 
such request is approved by the 
Director shall by an appropriate stamp 
indicate the location of such 
information on each report filet 
thereafter. 
(b) Monthly Monitoring Reports: 

(1) Every person operating a monitoring 
system required by this Section shall 
file a monitoring report once each 
month which includes the data for the 
samples collected during the month 
This report shall be filed no later than 
30 calendar days after the end of the 
reporting period for which the report is 
made. 

(2) Monthly monitoring reports shall be 
reviewed . compliance status 
determined, certified by signature, and 



1021 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



submitted by the following: 

(A) For a corporation: by a responsible 
corporate officer. For the purpose of 
the Section, a responsible corporate 
officer means: 

(i) a president, secretary, treasurer or 
vice president of the corporation 
in charge of a principal business 
function, or any other person who 
performs similar policy or 
decision-making functions for the 
corporation, or 

(ii) the manager of one or more 
manufacturing production or 
operating facilities employing 
more than 250 persons or having 
gross annual sales or expenditures 
exceeding twenty-five million 
dollars ($25,000,000) (in second 
quarter 1980 dollars), if authority 
to sign documents had been 
assigned or delegated to the 
manager in accordance with 
corporate procedures. 

(B) For a partnership or sole 
proprietorship: by a general partner 
or the proprietor, respectively; or 

(C) For a municipality. State, Federal, 
County, or other public agency: by 
either a principal executive officer or 
ranking elected official; 

(D) Duly authorized representative of the 
person described in Paragraph (b) (2) 
(A) (B) and (C). A person is a duly 
authorized representative only if 

(i) The authorization is made in 
writing by a person described m 
Paragraph (b) (2) (A) (B) and (C); 

(ii) The authorization specified either 
an individual or a position having 
responsibility for the overall 
operation of the regulated facility 
or activity, such as the position of 
plant manager, operator of a well 
or well field, superintendent, a 
position of equivalent 
responsibility, or an individual or 
position having overall 
responsibility for environmental 
matters for the company. (A duly 
authorized representative may thus 
be either a named individual or 
any individual occupying a named 
position.); and 

(iii) The written authorization is 



IE) 



(3) 



(A) 



(B) 



(C) 



submitted to the Permit Issuing 
Authority. Permittees authorizing 
another individual to sign as 
representative i_n no way 
relinquishes any responsibility for 
permit or his responsibility to 
remain familiar with the permit 
conditions, limits, including any 
modifications, and for the 
compliance data reports for the 
permit- 
Permittee signing the report certifies 
to the following statement: 'J_ I certify, 
under penalty of law, that this 
document and all attachments were 
prepared 



under my direction 



in accordance 



supervision 

system designed to 



or 
with a 



assure that 



qualified personnel properly gather 
and evaluate the information 
submitted. Based on my inquiry of 
the person or persons who managed 
the system, or those persons directly 
responsible for gathering the 
information, the information 
submitted is, to the best of my 
knowledge and belief, true, accurate, 
and complete. 1 am aware that there 
are significant penalties for submitting 
false information, including the 
possibility of fines and imprisonment 
for knowing violations, " tire — chief 
admini s trative official of a unit of 
government, by the owner or chief 
executive — fficcr — ef- — an — industrial 
e s tabli s hment or their duly appointed 
designee . The monthly report shall 
also be certified by the operator in 
responsible charge of a classified 
treatment facility or by the manager 
of an industrial establishment which 
has a point source of waste discharge 
and which does not have a classified 
water pollution control facility. 
In addition to the information required 
on all reports [see Subparagraph (a)(4) 
of this Rule] the following information 
shall be submitted in monthly 
monitoring reports: 
name of person or group collecting 
sample or making observation; 
name of person or group that 
analyzed sample; 

name of operator in responsible 
charge of the facility and the grade 



10 NORTH CAROLINA REGISTER August 14, 1992 



1022 



PROPOSED RULES 



(D) 
(E) 



(F) 



certificate held; 

sampling point for each sample; 
date and time (on 2400 hour clock 
basis) at which each grab sample was 
collected; 

composite samples: 

(i) date on which collection of 

composite samples is commenced, 

(ii) time of starting and ending of 

composite sample period on 2400 

hour clock basis; 

(G) wastewater flow in million gallons per 

day (MGD); 
(H) Results of analyses (reported to the 
designated number of figures with a 
properly placed decimal point as 
indicated on each report sheet) 
together with the proper storet 
number (to be furnished by the 
Division) for the analytical procedure 
used and the reporting units shall be 
those specified by the NPDES permit 
or current enforcement document, 
unless modified by the Director ; 
(I) Only numeric values will be accepted 
in reporting results of fecal coliform 
testing ; 
(IT) The results of all tests on the 
characteristics of the effluent, 
including but not limited to NPDES 
Permit Monitoring Requirements, 
shall be reported on monthly report 
forms; 
(iK.) The monthly average of analysis for 
each parameter and the maximum and 
minimum values for the month shall 
be reported. 
(L) Certification by the Operator in 
Responsible Charge (ORC) as to the 
accuracy and completeness of the 
report and that he has performed and 
documented the required visitation 
and appropriate process control. 
(c) Additional Reporting /Monitoring 

Requirements: 

(1) When a facility is operated on an 
independent contract basis, the operator 
in responsible charge shall notify the 
owner of the facility in writing of any 
existing or anticipated conditions at the 
facility which may interfere with its 
proper operation and which need 
corrective action by the owner. The 
notice shall include recommendations 
for corrective action. 



(2) 



01 



Two copies of the notice to the owne 
shall be sent to the Division as ai 
attachment to the next monthl 
monitoring report. 

A log demonstrating visitation at fly 
proper frequency for the assignee 
classification, including dates and time: 



of visits, and documentation of prope 
process control monitoring shall b( 
maintained and shall be submitted to tht 
Division upon request. Copies of al 
information must be readily availabl 



for inspection for a period of thret 
years. 
fd-) — Reporting Addresses and Phone Numbers 



-fB The — following — list — includes — & 



addresses and phone numbers for tb 
Division director and staff to whic l 



appropriate notifications shall be made 



{A) — Raleigh Central Office 
Director's Office 
Division e-f- Environmcnta 



Management 

P.O. Box 27687 

Raleigh, North Carolina 27611 

919/733 7015 

Water Quality Section Chief 

Division e-f- Environmcnta 



Management 
P.O. Box 27687 
Raleigh, North Carolina 27611 
919/733 5083 
(6) — Ashcvillo Regional Office 
Regional Supervisor 
Division — ef Environmcnta 



Management 
P.O. Box 370 

A s hcville, North Carolina 28801 
70 1 /253 33 4 1 
{€} — Fayetteville Regional Office 
Regional Supervisor 
Division e-f- Environmcnta 



Management 
Wachovia Building 
Suite 71 4 

Fayetteville, North Carolina 28301 
919/ 4 86 15 4 1 
{©) — Moorc s ville Regional Office 
Regional Supervi s or 
Division e-f- Environmcnta 



Management 
P.O. Box 950 

Moorcsville, North Carolina 28115 
70 4 /663 1699 
(E) — Raleigh Regional Office 



1023 



7:10 NORTH CAROLINA REGISTER August 14, 1991 



PROPOSED RULES 



Regional Supervisor 

D i v i 3 i o n &f- Environmental 

Management 

3800 Barrett Drive 

P.O. Box 27687 

Raleigh, North Carolina 27611 

919/733 231 1 
<p) — Washington Regional Office 

Regional Supervisor 

Division e-f Environmental 

Management 

1502 North Market Street 

Washington, North Carolina 27889 

919/9 4 6 6 4 81 
{G) — Wilmington Regional Office 

Regional Supervisor 

Division e-f- Environmental 

Management 

7225 Wrightsville Avenue 

Wilmington, North Carolina 28 4 01 

919/256 4 161 
(H) — Winston Salem Regional Office 

Regional Supervisor 

Division &f Environmental 

Management 

8003 North Point Boulevard 

Winston Salem, North Carolina 27106 

919/761 2351 
1} All information submitted will be classified 
public information unless determined otherwise 



the Director, 

tutory Authority G.S. 143-21 5. 1(b); 143- 
i.64; 143-215.65; 143-215.68. 

08 TESTS AND MEASUREMENTS APPLICABLE TO SICs 

Determination of Type and Frequency of Tests and Measurements: 

(1) Introduction. The tables set forth in this Rule are designed to indicate, for any particular water 
pollution control facility or point source, the minimum standard tests and measurements which are 
to be performed, the minimum frequency with which the tests and measurements are to be made 
conducted , and the location and minimum number of sampling points that are required. 

(2) Determination of Facility Class and SIC Numbers. Before these tables may be traed applied , the 

standard industrial classification(s) of the activities discharging to the water pollution control facility 
must be determined from The Standard Industrial Classification Manual (Superintendent of 
Document, U.S. Government Printing Office), — 1972 or subsequent editions . The classification of 
the facility as determined by the Wastewater Treatment Plant Operators Certification Commis s ion 
Water Pollution Control System Operators Certification Commission , must also be known. 
)) Modification of Test(s) or Measurement(s) Requirements: 

(1) If it is demonstrated to the satisfaction of the Director that any of the tests and measurements, 
sampling points, or frequency of sampling requirements, as required in this Rule for a particular 
SIC group, are not applicable to the discharge of a particular water pollution control facility, or 
if it can be shown demonstrated that the objectives of this Section can be achieved by other 
acceptable means, then such requirements may be waived or modified to the extent that the 
Division Director determines to be appropriate. 

(2) In addition to the tests and measurements as listed in this Rule applicable to each of the SIC 



10 NORTH CAROLINA REGISTER August 14, 1992 1024 



PROPOSED RULES 



groups, persons subject to this Section may be required to perform such additional tests anc 
measurements at such sampling points and with such frequency as are determined by the Directo 
to be necessary to adequately monitor constituents of the waste discharge and their effect upon thi 
receiving waters. This monitoring may include, but not be limited to weekends and holidays a 
deemed necessary by the Director to ensure representative sampling and proper operation an< 
maintenance of any facility. 

(c) Unclassified Activities: 

( 1 ) Any person owning or operating a water pollution control facility who determines that a major SIC 
group(s) is not listed in this Rule for an activity subject to this Section shall so notify the Division 

(2) The Director shall prescribe the number and location of sampling points and the frequency witl 
which tests and measurements must be made for such pollutant or pollutant effects as it shall deen 
necessary to properly monitor the quantity or quality of waste discharges resulting from any activity 
subject to this Section which is not included in the major SIC groups set forth in this Rule and t< 
properly monitor effects of the discharges upon the waters of this state. 

(d) Index of Major Standard Industrial Groups: 



SIC Number Major Products or Services 

0200 0299 Agricultural Production Live s tock 

1400-1499 Mining 

2000 2099 2199 Food afld i Beverage and Tobacco Processing 

2100 2199 Tobacco Processing 

2200-2299 Textile Processing 

2400-2499 2599 Lumber and Wood Products Except Furniture Wet Decking 

2500 2599 Manufacturing of Furniture and Fixtures 

2600-2699 Paper and Allied Products 

2800-2899 Chemical and Allied Products 

2900-2999 Petroleum Refining and Related Industries 

3100-3199 Leather and Leather Products 

3400-349 93699 Fabricated Metal Products Except Ordnance, Machinery 

and Transportation Equipment 
3500 3599 Machinery Except Electrical 

3600 3699 Electrical Machinery, Equipment and Supplies 

4 600 4 699 Pipe Line Transportation 

4900- 4939 Electric, and Gas and Sanitary Services 

4941 Water Supply 

4952 Wastewater and all facilities discharging only domestic w astewater 

7000 -3309 8999 Personal Services 

7300 7399 Miscellaneous Business Service 

7500 8599 Automobile Repairing Services and Garage s 

9999 Domestic Sewage 

Abbreviations for sampling locations and frequencies to be used with SIC monitoring requirements: 

"I" means influent "E" means effluent "U" means upstream "D" means downstream 

"2/month" means samples are collected twice per month with a required 10 day interval between the collection 

of the samples 

"3/week" means samples are collected three times per week on three separate days 

AGRICULTURAL PRODUCTIONS LIVESTO CK 

MINIMUM REQUIREMENTS FOR SIC 0200 0299 

EFFLUENT LIMITED 

REQUIRED TEST LOCATION FREQUENC E 

CLASS I& 44 CLASS III& 4V 



1025 7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



1. pH 



Weekly 



Daily 



2. Temperature, -g- 



3. BOD, 5-day, 20-G 

■A-. — Total Suspended Re s idue 



Wccldy 
2/month 



Daily 



2/month 



Daily 
Daily 



-4r. — Ammonia Nitrogen 
-&■. — Total Nitrogen 



Monthly 



Weekly 



-7t — Total Phosphorus 



-4-: — Dissolved Oxygen 
■Or. — Dissolved Oxygen 



WATER QUALITY LIMITED 
—E Weekly 



3. pH 



U,D Weekly 
-E Weekly 



Daily 



3 /week — h 



Daily 



4. Temperature, -G- 
-s — s; — o^ 

5. Temperature, -G- 



-E Weekly 

U,D Wccldy 



Daily 

3 /week + 



6. BOD, 5-day, 20-G 

-7t — Total Suspended Residue 



2/month 



2/month 



Daily 
Daily 



-%-. — Ammonia Nitrogen 
S-. — Total Nitrogen 



2/month 



Daily 



10. Total Phosphorus 



MINING 

MINIMUM REQUIREMENTS FOR SIC 1 4 00 1 4 99 

EFFLUENT LIMITED 



QUIRED TE ST- 



LOCATION - 



CLASS — l&U- 



FREOUENC -^ 
CLASS III&IV 



lr. — Turbidity 

3r. — Scttlcablc Matter 



-E Weekly 

-E Weekly 



Daily 
Daily 



?r. — Total Suspended Residue 



2/month 



-pH- 



Weekly 



Daily 
Daily 



WATER QUALITY LIMITED 



4-: — Turbidi 



Jrty 

2-. — Turbidity 

?r. — Settlcablc Matter 



-E Wccldy — 

-Ur© Weekly 



Daily 

3 /week — I- 



A-. — Total Suspended Re s idue 
&-. — pH 



Weekly 
2/month 



Daily 



Weekly 



Daily 
Daily 



QUIRED TE ST- 



FOOD AND BEVERAGE PROCESSING 

MINIMUM REQUIREMENTS FOR SIC 2000 2099 

EFFLUENT LIMITED 



LOCATION 



CLASS — Kfett- 



FREOUENG Y - 
CLASS III& 4V 



1. pH 



-E Weekly 



Daily 



2. Temperature, — G— 



J. BOD, 5-day, 2(PG- 



Wcckly 
2/month 



Daily 



4: — Total Suspended Residue 
$■■ — Ammonia Nitrogen 



Daily 



?/month 



-©a+ty 



-E Monthly 



€-. — Total Nitrogen 

•k — Total Phosphorus 



Weekly 



Dissolved Oxygen 



WATER QUALITY LIMITED 
E Wccldy 



Dissolved Oxygen 



S-. — ptt- 



U,D Weekly 



Daily 

3 /week I 



Weekly 



Daily 



10 NORTH CAROLINA REGISTER August 14, 1992 



1026 



PROPOSED RULES 



4. Temperature, 



i€- 



Temperature. — C— 



6. BOD, 5-day, 20^G- 



-E Weekly 

U,D Weekly 
-E 2/month — 



Daily 

3 /week + 



Daily 



Total Su s pended Residue 



2/month 



Daily 



Ammonia Nitrogen 



2/month 



Daily 



9-. Total Nitrogen 

40^ — Total Phosphorus 



TOBACCO PROCESSI NG 

MINIMUM REQUIREMENTS FOR SIC 2100 2199 

EFFLUENT LIMITED 



REQUIRED TEST 



LOCATION 



CLASS I&II 



FREQUENC E 
CLASS III &P/- 



-pH- 



Weekly 



Daily 



2. Temperature, -G- 



3. BOD, 5-day, 2CPG- 



Weekly 
2/month 



Daily 



Daily 



-4-. — Total Su s pended Residue 

S-. — Ammonia Nitrogen 

-&-. — Total Nitrogen 



2/month 



Daily 



-E Monthly 



Weekly 



Total Pho s phoru s 



4-. — Dissolved Oxygen 



WATER QUALITY LIMITED 

E Weekly 



Dis s olved Oxygen 



U,D Weekly 



Daily 

3/week — I- 



3. pH 



Weekly 



Daily 



4. Temperature, -G- 



W ee kly 



5. Temperature, -G- 



6. BOD, 5-day, 2CPG- 



U.D Weekly 
-E 2/month — 



Daily 
3/week — h 



Daily 



-7; — Total Suspended Residue 
-&■. — Ammonia Nitrogen 



2/month 



Daily 



2/month 



Daily 



-9-. — Total Nitrogen 



+Q-. — Total Pho s phorus 



REQUIRED TEST 



TEXTILE PROCESSIN G 

MINIMUM REQUIREMENTS FOR SIC 2200 2299 

EFFLUENT LIMITED 



LOCATION - 



FREQUENG Y 



CLASS I& fr 



CLASS 



III&IV 



1. pH 



2. Temperature, — C— 



Weekly 



Daily 



3. BOD, 5-day, 2CPC- 



Weekly 
2/month 



Daily 



Daily 



COD 



•£-. — Total Suspended Residue 
-&. — Total Nitrogen 



Monthly 
2/month 



Weekly 



Daily 



Total Phosphorus 



WATER QUALITY LIMITED 



-\-. — Dissolved Oxygen 
-3-: — Dissolved Oxygen 



Weekly 



U,D Weekly 



Daily 

3/week — I- 



-pH- 



4. Temperature, -G- 



W e ekly 



Daily 



5. Temperature, — G- 



Weekly 



6. BOD, 5-day. 20^G- 

7. COD 



U,D Weekly 
-E 2/month — 



Daily 

3/week + 



Daily 



2/month 



Weekly 



1027 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



-$r. — Total Suapcndcd Residue 



2/month 



Daily 



-9, — Total Nitrogen 

4 0. Total Phosphorus 



LUMBER AND WOOD PRODUCTS (EXCEPT FURNITURE) 

MINIMUM REQUIREMENTS FOR SIC 2 4 00 2 4 99 

EFFLUENT LIMITED 



I )UIRED TEST - 



LOCATION - 



FREQUENG ¥ 



CLASS I& -H- 



CLASS III &TV 



1. pH 



Weekly 



Daily 



2. Temperature, -G- 



3. BOD, 5-day. 20-G- 
-4 . COD 



Weekly 
2/month 



Daily 



-&-. — Total Phcnolies 



-E Monthly 

-E 2/month 



Daily 
Weekly 



Daily 



4f. — Total Su s pended Residue 
7. Total Nitrogen 



2/month 



Daily 



-%-. — Total Phosphorus 



WATER QUALITY LIMITED 



4-. — Dissolved Oxygen 
-2^ — Dissolved Oxygen 



-E Weekly — 

U,D Weekly 



Daily 
3/wcck 4 



3. pH 



4. Temperature, -€— 



Weekly 

Weekly 



Daily 
Daily 



5. Temperature, — G- 



6. BOD, 5-day, 20-G- 

7. COD 



U,D Weekly 
-E 2/month — 



3/wcck + 



2/month 



-©aily 
Daily 



-& — Total Phcnolies 



1/month 



Daily 



-9-. — Total Suspended Residue 



2/month 



Daily 



4& — Total Nitrogen 

11. Total Phosphorus 



MANUFACTURING OF FURNITURE AND FIXTURES 

MINIMUM REQUIREMENTS FOR SIX 2500 2599 

EFFLUENT LIMITED 



3UIRED TE ST- 



LOCATION 



CLASS 



-4*44- 



FREOUENG Y- 
CLASS III&IV 



1. pH 



2. Temperature, -G- 



Wcckly 



Daily 



3. BOD, 5-day, 2(PG- 



Wcekly 
2/month 



Daily 



Daily 



4 . COD 



-§-. — Total Phcnolies 



Monthly 
2/month 



Weekly 



Daily 



-&■. — Formaldehyde 

-7; — Total Suspended Residue 



2/month 



Daily 



2/month 



Daily 



-8; — Total Nitrogen — 
-ft — Total Pho s phorus 



WATER QUALITY LIMITED 



4-: — Dissolved Oxygen 



Weekly 



Dissolved Oxygen 



U,D Weekly 



Daily 

3 /week I 



3. pll 



4. Temperature, -€- 



-E Weekly 



Daily 



5. Temperature, -G- 



6. BOD, 5-day, 2(PG- 

7. COD 



-E Weekly — 

U,D Weekly 
-E 2/month — 



Daily 
3/wcck 4 



Daily 



2/month 



-%-. — Total Phcnolies 



Daily 



2/month 



Daily 



10 NORTH CAROLINA REGISTER August 14, 1992 



1028 



PROPOSED RULES 



-9-. — Formaldehyde 

+& — Total Suspended Residue 
+-h — Total Nitrogen 



2/month 



Daily 



2/month 



Daily 



V2r. — Total Pho s phoru s 



PA PER AND ALLIED PRODUCTS 

MINIMUM REQUIREMENTS FOR SIC 2600 2699 

EFFLUENT LIMITED 



REQUIRED TEST 



LOCATION 



CLASS \&U- 



FREQUEN GY- 
CLASS Ul &W 



-pH- 



2. Temperature, -C— 



Weekly 
Weekly 



Daily 



Daily 



3. 
4r 



BOD, 5-day, 20^€- 



2/month 



Daily 



Total Suspended Residue 



2/month 



Daily 



§-. Total Nitrogen 



&. Total Phosphorus 



-h Dissolved Oxygen 

3r. Dissolved Oxygen 

3t 



WATER QUALITY LIMITED 

E Weekly 



U,D Weekly 



Daily 
3/wcck — h 



-pH- 



o. 



Weekly 



Daily 



4. Temperature, — G- 

5. Temperature, -G- 



Weekly 



6. BOD, 5-day, 20^€ 

1-. Total Su s pended Residue 



U,D Weekly 
-E 2/month — 



Daily 

3/wcck 



Daily 



2/month 



Daily 



8-; Total Nitrogen 



9-. — Total Phosphorus 



REQUIRED TEST 



CHEMICAL AND ALLIED PRODUCTS 

MINIMUM REQUIREMENTS FOR SIC 2800 2899 

EFFLUENT LIMITED 



LOCATION - 



CLASS i&U- 



FREQUENCY 
CLASS III &W 



-pH- 



Weekly 



-Daily 



2. Temperature, — G — 
J. BOD, 5-day, 2(£g- 



Weekly 
2/month 



Daily 



Daily 



A-. Total Suspended Residue 



2/month 



Daily 



Total Nitrogen 



&-. Total Phosphorus 

ir. Di s solved Oxygen 



WATER QUALITY LIMITED 



Weekly 



Di ss olved Oxygen 

-pH : — 



-UrD Weekly 

■E Weekly — 



Daily 

3 /week I 



Daily 



4. Temperature, -€— 

5. Temperature, — €— 

r* 



Weekly 



BOD, 5-day, 2CPG 

Total Suspended Residue 



-Ur© Weekly 

-E 2/month — 



Daily 
3/vveek — F 



-Bfttry 



;>fTth- 



Daily 



&-. Total Nitrogen 



9-. Total Phosphoru s 



PETROLEUM REFINING AND RELATED INDUSTRIES 

MINIMUM REQUIREMENTS FOR SIC 2900 2999 

EFFLUENT LIMITED 



1029 



7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



Q UIRED TE gP- 



LOCATION 



FREQUENG Y- 



CLASS 



4&U- 



CLASS 1II& 4V 



1. pH 



2. Temperature, -€r- 



Weekly 
Weekly 



Daily 



Daily 



3. BOD, 5-day, 20^G 

-A-. — Total Suapcndcd Residue 

-%-. — Total Phcnolico 

S-. — Oil and Grease 



2/month 



2/month 



Daily 
Daily 



2/month 



H/month 



Daily 
Daily 



-3-. — Total Nitrogen 



-& — Total Pho s phorus 



WATER QUALITY LIMITED 



-h — Dissolved Oxygen 
-2^ — Dissolved Oxygen 



-E Weekly — 

-Ur© Weekly 



Daily 
3 /week 



jUIRED T EST- 



3. pH 



Weekly 



Daily 



4. Temperature, -€— 



Weekly 



5. Temperature, -€— 



6. BOD, 5-day, 20-G 

-3-, — Total Su s pended Residue 
-%-. — Total Phcnolico 



-Ur© Weekly 

-E 2/month — 



Daily 
3/week 



2/month 



Daily 
Daily 



2/month 



-9-. — Oil and Grease 



2/month 



Daily 
Daily 



\Q-. — Total Nitrogen 



11. Total Phosphorous 



LEATHER AND LEATHER PRODU CTS 



MINIMUM REQUIREMENTS FOR SIC 3100 3199 
EFFLUENT LIMITED 



LOCATION - 



FREQUENG Y- 



CLASS I&1I 



CLASS III& P/ 



1. pH 



Weekly 



2. Temperature, — G- 



3. BOD, 5-day, 2CPG- 



-E Weekly 

-E 2/month 



Daily 
Daily 



Daily 



-A-. — Total Suspended Residue 
5. COD 



I/month 



Daily 



Monthly 



Weekly 



-&. — Ammonia Nitrogen 
-7: — Oil and Grea s e 



Monthly 
2/month 



Weekly 



Daily 



-&-. — Turbidity 

-9-. — Total Nitrogen 



Weekly 



Daily 



4& — Total Phosphorous 



WATER QUALITY LIMITED 



-i-. — Dissolved Oxygen 



Weekly 



Dissolved Oxygen 



i"-ee+ 
-Ur© Weekly 



Daily 
3/week 



3. pH 



4. Temperature, -G- 



Wccldy 



Daily 



Weekly 



5. Temperature, -6- 



6. BOD, 5-day, 2(FG- 



-UrB Weekly 

-E 2/month — 



Daily 
3 /week 



-3?! — Total Suspended Residue 
8. COD 



-BaHy 



2/month 



-Daily 



2/month 



•9-. — Ammonia Nitrogen 
W-. — Oil and Grease 



Daily 



2/month 



Daily 



2/month 



Daily 



4-h — Turbidity 

-t2r — Total Nitrogen 



Weekly 



Daily 



■&-■ — Total Pho s phorou s 



FABRICATED METAL PRODUCTS EXCEPT ORDINANCE: 



10 NORTH CAROLINA REGISTER August 14, 1992 



1030 



PROPOSED RULES 



MACHINERY AND TRANSPORTATION EQUIPMENT 

MINIMUM REQUIREMENTS FOR SIC 3 4 00 3 4 99 

EFFLUENT LIMITED 



REQUIRED TEST 



^H- 



LOCATION 

CLASS l&U- 



FREQUEN CE 
CLASS III&IV 



Temperature, — C— 
Oil and Grease — 



Weekly 
Weekly 
2/month 



Daily 



Daily 



Daily 



Total Nitrogen 



5^ Total Phosphorous 



Dissolved Oxygen 



WATER QUALITY LIMITED 

E Weekly 



Dissolved Oxygen 



-UtB Weekly 



Daily 
3/wcck + 



-pH- 



Weekly 



Daily 



4. Temperature, - €■ 

5. Temperature, -C- 



Wcclcly 



Oil and Grea s e 



-Ut6 Weekly 

-E 2/month — 



Daily 

-3Aveek— I- 



Daily 



7-. Total Nitrogen 

& Total Pho s phorou s 



MAG HINERY EXCEPT ELECTRICAL 

MINIMUM REQUIREMENTS FOR SIC 3500 3599 

EFFLUENT LIMITED 



REQUIRED TEST 



LOCATION - 



CLASS fcfeH- 



FREOUENC -Y- 
CLASS — III&IV 



-pH- 



Temperature, — €— 
Oil and Grease — 



We e kly 
Weekly 



Daily 
Daily 



2/month 



Daily 



A-. Total Nitrogen 



§-. Total Phosphorous 



-9* 



WATER QUALITY LIMITED 



ssolvcd Oxygen 
Dissolved Oxygen 

"PH Z 



Weekly 



nee* 
-Ur© Weekly 



Daily 

3 /week + 



4. Temperature, -€- 



Weekly 
Weekly 



Daily 



5. Temperature, — G— 
%-. Oil and Grease — 



-Ut© Weekly 

-E 2/month — 



Daily 

3 /week — V- 



Daily 



Total Nitrogen 



%-. Total Phosphorous 



REQUIRED TEST 



ELECTRICAL MACHINERY, EQUIPMENT AND SUPPLIES 

MINIMUM REQUIREMENTS FOR SIC 3600 3699 

EFFLUENT LIMITED 



LOCATION 



CLASS 



4&4I- 



FREQUEN G¥ 
CLASS — III&IV 



-pH- 



Weekly 



Daily 



Temperature, — C— 
Oil and Grease — 



Weekly 
2/month 



Daily 



Daily 



Ar. Total Nitrogen 



Total Phosphorous 



ir. Dissolved Oxygen 



WATER QUALITY LIMITED 
E Weekly Ba44y 



1031 



7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



3r. — Dissolved Oxygen 



-Ur© Weekly 



3 /week 



-PH- 



Wcckly 



Daily 



Temperature, -€- 



Temperature, — G- 
Oil and Grcaoe — 



45 Weekly — 

-Ur© Weekly 

4s 2/month — 



Daily 

3 /week — I- 



Daily 



Total Nitrogen 

Total Phosphorous 



)UIRED TE ST- 



P4 PELINE TRANSPORTATION 

MINIMUM REQUIREMENTS FOR SIC 4 600 4 699 

EFFLUENT LIMITED 



LOCATION 



CLASS 



4&44- 



FREQUENG Y- 
III&IV 



-pH- 



Weckly 



Daily 



2. Temperature, -G- 
2-, Oil and Grcao e — 



Weekly 
2/month 



Daily 
Daily 



4-. — Total Nitrogen 



Total Phosphorous 



4^ — Dissolved Oxygen 



WATER QUALITY LIMITED 
E Weekly 



Daily 



Dissolved Oxygen 



-pH- 



4443 Weekly 

-E Weekly 



3 /week + 



Daily 



4. T emperature, ^ G- 

5. Temperature, — G- 



Oil and Grease 



-E Weekly — 

-Ur© Weekly 

45 2/month — 



Daily 

3 /week + 



Daily 



Total Nitrogen 



& — Total Phosphorous 



3UIRED TE ST- 



ELECTRICAL, GAS, AND SANITARY SERVI GES 

MINIMUM REQUIREMENTS FOR SIC 4 900 4 999 

EFFLUENT LIMITED 



LOCATION - 



CLASS 



4&4I- 



FREOUENG Y- 
CLASS III &4V 



h 



-pH- 



Daily 



Daily 



2. Temperature, -G- 



Daily 



Daily 



Total Nitrogen 



A-. — Total Phosphorous 



WATER QUALITY LIMITED 



4-: — Dissolved Oxygen 
3r. — Dissolved Oxygen 



Daily 



U,D Daily 



Daily 
1/wcek 



3t 



-PH- 



Daily 



Daily 



4. Temperature, — G- 

5. Temperature, -G- 
& — Total Nitrogen 



Daily 



U,D Daily 



Daily 

3 /week — h 



Total Phosphorous 



The following additional monitoring for steam electric generating establishment s di s charging cooling 



e r shall be required whether or not the discharge is from a classified facility. 



3UIRED T EST - 



LOCATION - 



CLASS 



4*44- 



FREQUEN GY- 
CLASS — III&IV 



1 ■ Tem perature, — G- 
2. Temperature, -G- 



Continuous 



Continuous 



-UtG- 



3 /week — I— 



3 /week I 



10 NORTH CAROLINA REGISTER August 14, 1992 



1032 



PROPOSED RULES 



Rate of Cooling Water 
Di s charge 



Continuous 



Continuous 



during 

Discharge 



during 
Discharge 



REQUIRED TEST 



PERSONAL SERVICE S 

MINIMUM REQUIREMENTS FOR SIC 7200 7299 

EFFLUENT LIMITED 



LOCATION 



CLASS l&U- 



FREQUENC E 
CLASS III&IV 



1. pH 



E Weekly 



-Baiiy 



2. Temperature, -€- 



3. BOD, 5-day, 2(P€ 

-4-. — Total Suspended Residue 



-E — Weekly 
-E — 2/month 



Daily 



Daily 



E 2/month 



Daily 



-§-. — Ammonia Nitrogen 



-4r. — Detergents (MB AS) 



E Monthly 
-E — 2/month 



Weekly 



Weekly 



■3-. — Fecal Coliform (where 

applicable) 
-&-. — Total Nitrogen 



E 2/month 



-£teify 



-9-. — Total Phosphorous 



E — Monthly Weekly 

WATER QUALITY LIMITED 



Dissolved Oxygen 



Weekly 



-2-. — Dissolved Oxygen 



U,D Weekly 



Daily 

3 /week 



3. pH 



Weekly 



Daily 



4. Temperature, — G- 



Weekly 



5. Temperature, -€- 



6. BOD, 5-day, 2CPC 

-7: — Total Suspended Residue 



U,D Weekly 
-E 2/month — 



Daily 

3 /week — E- 



Daily 



2/month 



Daily 



Ammonia Nitrogen 



2/month 



Daily 



-9-. — Detergents (MB AS) 
+0t — Fecal Coliform 



2/month 



Weekly 



2/month 



Daily 



4-h — Total Nitrogen 



4-2^ — Total Pho s phorou s 



MISCELLANEOUS BUSINESS SERVICE 



REQUIRED TEST 



MINIMUM REQUIREMENTS FOR SIC 7300 7399 

EFFLUENT LIMITED 
LOCATION 



CLASS 



4&H- 



FREQUENC -Y- 
CLASS Hl &fV 



-pH- 



Temperature, — €- 



3. BOD, 5-day, 2(P€- 



E Weekly 

E Weekly 

-E — 2/month 



^aiiy 



Daily 



Daily 



Total Suspended Residue 
Total Nitrogen 



-E — 2/month 



Daily 



€-. Total Phosphorous 



WATER QUALITY LIMITED 



-h Di ss olved Oxygen 

5r. Dissolved Oxygen 



-E — Weekly 



U,D Weekly 



Daily 

3 /week — E- 



"P«- 



E Weekly 



4. Temperature, — C— 



Daily 



E Weekly 



5. Temperature, — G — 
BOD, 5-day, 2Qh€- 



6. 

7r 



U,D Weekly 
-E — 2/month 



Daily 
3/week — E 



Daily 



Total Suspended Residue 
Total Nitrogen 



-E — 2/month 



Daily 



1033 



7:10 NORTH CAROLINA REGISTER August 14, 19% 



PROPOSED RULES 



$-. — Total Pho s phorous 



r.OUIRED T EST- 



AUTOMOBILE REPAIRING SERVICES AND GARAGES 

MINIMUM REQUIREMENTS FOR SIC 7500 8599 

EFFLUENT LIMITED 



LOCATION - 



FREOUENG Y- 



CLASS 



4&44- 



CLASS Hl tfeW 



1. pH 



2. Temperature, -G- 



E Weekly 
E Weekly 



Daily 



Daily 



3. BOD, 5-day, 20-G 

-A-. — Total Suspended Residue 



-E — 2/month 



-E — 2/month 



Daily 
Daily 



-$-. — Detergents (MB AS) 
-%-. — Oil and Grease 



-E — 2/month 



- 7. Turbidity 

8. Total Nitrogen 



-E — Monthly 
E Weekly 



Weekly 
Weekly 



Daily 



-9-. — Total Phosphorous 



4-. — Dissolved Oxygen 
■3r. — Dissolved Oxygen 



WATER QUALITY LIMITED 
E Weekly 



Daily 



^H- 



U,D Weekly 
E Weekly — 



3 /week + 



Daily 



4. Temperature, — G- 

5. Temperature, -G 



E Weekly 



20^€- 



6. BOD, 5-day, 
-3-. — Total Suspended Residue 



U,D Weekly 
-E — 2/month — 



Daily 
3 /week + 



-E — 2/month 



Daily 
Daily 



8. Detergent s MBAS - 
-9-. — Oil and Grease 



-E — 2/month 



Daily 



2/month 



REQUIRED TEST 



10. Turbidity 

4-4-: — Total Nitrogen 



E Weekly 



Daily 
Daily 



4-2^ — Total Pho s phorou s 



DOMESTIC SEWAGE 

MINIMUM REQUIREMENTS FOR SIC 9999 

EFFLUENT LIMITED 



LOCATION - 



CLASS 



-4*44- 



FREQUEN GY 
CLASS — III&IV 



1. pH 



-E — 2/month 



Daily 



2. Temperature, — G- 



3. BOD, 5-day, 20^G- 



E Weekly 
I,E 2/month 



Daily 



Daily 



-A-. — Total Suspended Re s idue 
Si — Ammonia Nitrogen 



-E — 2/month 



Daily 



-E — Monthly 



Weekly 



-&. — Residual Chlorine (where 



applicable) 



-E — Da44y- 



Daily 



-7: — Fecal Coliform (where 
applicable) 



H/month 



-&-. — Total Nitrogen 

-9-, — Total Phosphorou s 



Daily 



4-: — Dissolved Oxygen 



WATER QUALITY LIMITED 



E Weekly 



-2-: — Dissolved Oxygen 
3. pll 



U,D Weekly 
-E — 2/month — 



Daily 
3/wcck — K 



4. Temperature, — G- 



Daily 



5. Temperature, — G- 



E Weekly 



6. BOD, 5-day, 20^€- 



U,D Weekly 
I,E 2/month 



Daily 

3/wcck 4 



Daily 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1034 



PROPOSED RULES 









F ?/ 






















1 














_i 






F rir 






Dnilv 




















F ~>f 






Dnilv 








1 1 n 










1 






F 


* 




* 


















n t„+~i nu^^K^^-.n 




p 


* 




* 












MINING 










MINIMUM 


REQUIREMENTS FOR SIC 1400-1499 




REOUIRED TEST LOCATION 


FREOUENCY 












CLASS 


CLASS 


CLASS 


CLASS 










I 


II 


III 


IV 




I 


Turbidity 


E 


Monthly 


Monthly 


Monthly 


Monthly 




2 


. Settleable Matter 


E 


Monthly 


Monthly 


Monthly 


Monthly 




3 


TSS 


E 


Monthly 


Monthly 


Monthly 


Monthly 




4 


. EM 


E 


Monthly 


Monthly 


Monthly 


Monthly 




5 


Toxics and Toxicity 




+* 


** 


** 


** 






FOOD AND BEVERAGE PROCESSING AND TOBACCO PROCESSING 








MINIMUM REQUIREMENTS FOR SIC 2000-2199 










EFFLUENT LIMITED 






REQUIRED TEST LOCATION 


FREOUENCY 












CLASS 


CLASS 


CLASS 


CLASS 










I 


I] 


II] 


IY 




1 


■ bH 


E 


Weekly 


Weekly 


3 /week 


Daily 




2 


Temperature, C 
BOD, 5-dav, 2r?C 


E 


Weekly 


Weekly 


3 /week 


Daily 




3 


E 


2/month 


Weekly 


3 /week 


Daily 




4 


TSS 


E 


2/month 


Weekly 


3 /week 


Daily 




5_ 


Ammonia Nitrogen 


E 


Monthly 


2/month 


Weekly 


Weekly 




6 


Total Nitrogen 


E 


* 


* 


* 


* 




7 


Total Phosphorus 


E 


* 


* 


* 


* 




8_ 


Toxics and Toxicity 




** 


** 


_ 


** 










WATER OUALITY 


LIMITED 






1 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3 /week 


Daily 




2 


Dissolved Oxygen 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 




3_ 


^ 


E 


Weekly 


Weekly 


3 /week 


Daily 




4 


Temperature, C 
Temperature, C 
BOD, 5-dav, 20°C 


E 


Weekly 


Weekly 


3 /week 


Daily 




5_ 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 




6 


E 


2/month 


Weekly 


3 /week 


Daily 




7 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 




S_ 


Ammonia Nitrogen 


E 


2/month 


Weekly 


3 /week 


Daily 




9 


Total Nitrogen 


E 


* 


* 


* 


* 




H 


). Total Phosphorus 


E 


* 


* 


* 


* 




1 


. Toxics and Toxicity 




** 


* * 


** 


** 




1 


I. Conductivity 


E 


Weekly 


Weekly 


3/week 


Daily 




J_ 


5. Conductivity 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 










TEXTILE PROCESSING 








MINIMUM REQUIREMENTS FOR SIC 2200-2299 










EFFLUENT LIMITED 






1035 






7:10 


NORTH CAROLINA REGISTER August 14, 


199: 



PROPOSED RULES 



-OUIRED TEST L( 


DCATION 

CLASS 


FREOUENCY 

CLASS CLASS 








CLASS 








I 


H 


Ill 


IY 


\ L 


211 


E 


Weekly 


Weeklv 


3 /week 


Daily 


2. 


Temperature, C 


E 


Weekly 


Weeklv 


3/week 


Daily 


3. 


BOD, 5-dav. 20° C 


E 


2/month 


Weeklv 


3 /week 


Daily 


4. 


COD 


E 


2/month 


Weeklv 


3/week 


Daily 


5. 


TSS 


E 


2/month 


Weeklv 


3/week 


Daily 


6. 


Total Nitrogen 


E 


* 


# 


* 


H« 


7. 


Total Phosphorus 


E 


* 


* 


* 


* 


$L 


Toxics and Toxicity 




** 


** 


** 


** 








WATER OUALITY LIMITED 




l. 


Dissolved Oxygen 


E 


Weekly 


Weeklv 


3/week 


Dailv 


2. 


Dissolved Oxygen 


U,D 


Weekly 


Weeklv 


3/week + 


3/week + 


3. 


^ 


E 


Weekly 


Weeklv 


3/week 


Daily 


4. 


Temperature, C 


E 


Weekly 


Weeklv 


3/week 


Daily 


5. 


Temperature, C 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 


6. 


BOD, 5-dav. 20 U C 


E 


2/month 


Weekly 


3/week 


Daily 


7. 


COD 


E 


2/month 


Weeklv 


Weeklv 


Weeklv 


8. 


TSS 


E 


2/month 


Weeklv 


3/week 


Daily 


<L 


Total Nitrogen 


E 


* 


* 


* 


* 


10. 


Total Phosphorus 


E 


* 


>; 


* 


* 


n. 


Toxics and Toxicity 




** 


*=< 


sje* 


** 


12. 


Conductivity 


E 


Weekly 


Weekly 


3/week 


Dailv 


13, 


Conductivity 


U,D 


Weekly 


Weeklv 


3/week + 


3/week + 




LUMBER AND WOOD PRODUCTS (EXCLUDING WET DECKING) 




MINIMUM REQUIREMENTS FOR SIC 2400- 


2599 








EFFLUENT LIMITED 




EOUIRED TEST LC 


)CATION 

CLASS 


FREOUENCY 

CLASS CLASS 








CLASS 








I 


II 


III 


IY 


L 


^ 


E 


Weekly 


Weeklv 


3/week 


Dailv 


2, 


Temperature, C 


E 


Weekly 


Weeklv 


3/week 


Dailv 


3. 


BOD, 5-day, 26°C 


E 


2/month 


Weeklv 


3/week 


Dailv 


4. 


COD 


E 


Monthly 


2/month 


Weeklv 


3/week 


5. 


Total Phenols 


E 


2/month 


Weeklv 


3/week 


Dailv 


6, 


TSS 


E 


2/month 


Weeklv 


3/week 


Daily 


7. 


Total Nitrogen 


E 


He 


* 


>< 


He 


8. 


Total Phosphorus 


E 


* 


* 


* 


* 


9. 


Toxics and Toxicity 




** 


__ 


11 


** 








WATER OUALITY LIMITED 




L 


Dissolved Oxygen 


E 


Weekly 


Weeklv 


3/week 


Dailv 


2. 


Dissolved Oxygen 


U.D 


Weekly 


Weeklv 


3/week + 


3/week + 


L 


^ 


E 


Weekly 


Weekly 


3/week 


Daily 


4, 


Temperature, C 
Temperature, C 
BOD, 5-dav, 20° C 


E 


Weekly 


Weeklv 


3/week 


Dailv 


5. 


U,D 


Weeklv 


Weekly 


3/week + 


3/week + 


6, 


E 


2/month 


Weeklv 


3/week 


Dailv 


7. 


COD 


E 


2/month 


Weeklv 


3/week 


Dailv 


8, 


Total Phenols 


E 


2/month 


Weeklv 


3/week 


Daily 


9, 


TSS 


E 


2/month 


Weeklv 


3/week 


Dailv 


KL 


Total Nitrogen 


E 


- 


- 


- 


- 






7:10 NORTH CAROLINA REGISTER August 14, 1992 



1036 









PROPOSED RULES 






i_L 


Total Phosphorus 


E 


* 


* 


* 


* 




12. 


Toxics and Toxicity 




=fc + 


}je:{e 


** 


X* 




13. 


Conductivity 


E 


Weekly 


Weekly 


3/week 


Daily 




it 


Conductivity 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 








PAPER AND ALLIED PRODUCTS 








MINIMUM REQUIREMENTS FOR SIC 2600- 


2699 










EFFLUENT LIMITED 






REQUIRED TEST LOCATION 


FREOUENCY 












CLASS 


CLASS 


CLASS 


CLASS 










I 


II 


III 


IV 




1. 


m 


E 


Weekly 


Weekly 


3/week 


Daily 




2, 


Temperature, C 
BOD, 5-day, 20° C 


E 


Weekly 


Weekly 


3/week 


Daily 




3. 


E 


2/month 


Weekly 


3/week 


Daily 




4. 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 




5. 


Total Nitrogen 


E 


* 


* 


* 


* 




6. 


Total Phosphorus 


E 


* 


* 


* 


* 




7. 


Toxics and Toxicity 




11 


ijes-s 


11 


% X 










WATER OUALITY LIMITED 






1. 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3/week 


Daily 




2. 


Dissolved Oxygen 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 




3. 


eH 


E 


Weekly 


Weekly 


3/week 


Daily 




4. 


Temperature, C 


E 


Weekly 


Weekly 


3/week 


Daily 




5_ 


Temperature, C 
BOD, 5-dav. 26° C 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 




6. 


E 


2/month 


Weekly 


3/week 


Daily 




7. 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 




*L 


Total Nitrogen 


E 


* 


* 


* 


* 




9, 


Total Phosphorus 


E 


* 


* 


* 


SJC 




10. 


Toxics and Toxicity 




** 


sjesj: 


** 


** 




11. 


Conductivity 


E 


Weekly 


Weekly 


3/week 


Daily 




JJL 


Conductivity 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 








CHEMICAL AND ALLIED PRODUCTS 








MINIMUM REQUIREMENTS FOl 
EFFLUENT LIMITE 


* SIC 2800- 


2899 






;d 




REOUIRED TEST LOCATION 


FREOUENCY 












CLASS 


CLASS 


CLASS 


CLASS 










I 


II 


III 


IV 




L 


m 


E 


Weekly 


Weekly 


3/week 


Daily 




2 


Temperature, C 
BOD, 5-dav, 20° C 


E 


Weekly 


Weekly 


3/week 


Daily 




3_ 


E 


2/month 


Weekly 


3/week 


Daily 




4_ 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 




5. 


Total Nitrogen 


E 


* 


sje 


* 


* 




6. 


Total Phosphorus 


E 


* 


* 


* 


* 




L 


Toxics and Toxicity 




— - 


** 


11 


11 










WATER OUALITY LIMITED 






i. 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3/week 


Daily 




2. 


Dissolved Oxygen 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 




3, 


^ 


E 


Weekly 


Weekly 


3/week 


Daily 




4. 


Temperature, C 


E 


Weekly 


Weekly 


3/week 


Daily 




5_ 


Temperature, C 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 




1037 






7:10 


NORTH CAROLINA REGISTER 


August 14, 199: 



PROPOSED RULES 



6. BOD, 5-day, 20o 



C 



7. 

10, 

11. 



TSS 

Total Nitrogen 

Total Phosphorus 

Toxics and Toxicity 

Conductivity 



12. Conductivity 



E 2/month 

E 2/month 
E * 

I * 

E Weekly 

U,D Weekly 



Weekly 
Weekly 



3/week 
3 /week 

* 



Daily 
Daily 



Weekly 3/week 
Weekly 3/week + 



Daily 

3/week + 



PETROLEUM REFINING AND RELATED INDUSTRIES 

MINIMUM REQUIREMENTS FOR SIC 2900-2999 

EFFLUENT LIMITED 



EOUIRED TEST 



LOCATION 



1. pJH 

— — o 

2^ Temperature, C 

3, BOD, 5-day, 2fl°C 

4, TSS 

5^ Total Phenols 

6, Oil and Grease 

"L Total Nitrogen 

8_, Total Phosphorus 

9. Toxics and Toxicity 



E_ Dissolved Oxygen 

2^ Dissolved Oxygen 

3^ pH 

4^ Temperature, C 

5^ Temperature, C 

6, BOD, 5-day, 20° C 

7. JSS 

8^ Total Phenolics 

9^ Oil and Grease 

10. Total Nitrogen 

1 1. Total Phosphorus 

12. Toxics and Toxicity 

13. Conductivity 

14. Conductivity 



E 
E 
E 
E 
E 
E 
E 
E 



CLASS 
I 

Weekly 
Weekly 
2/month 
2/month 
2/month 
2/month 



FREQUENCY 

CLASS CLASS 



II 

Weekly 
Weekly 
Weekly 
Weekly 
Weekly 

Weekly 

* 



III 

3/week 
3/week 
3/week 
3/week 
3/week 
3/week 



E 
U.D 

E 

E 
U.D 

E 

E 

E 

E 

E 

E 



WATER QUALITY LIMITED 

Weekly 
Weekly 
Weekly 
Weekly 
Weekly 
2/month 



2/month 
2/month 
2/month 



Weekly 


3/week 


Weekly 


3 /week + 


Weekly 


3/week 


Weekly 


3/week 


Weekly 


3/week + 


Weekly 


3/week 


Weekly 


3/week 


Weekly 


3/week 


Weekly 


3/week 



E Weekly 
U.D Weekly 



Weekly 
Weekly 



** 

3/week 
3/week + 



CLASS 

LY 
Daily 
Daily 
Daily 
Daily 
Daily 

Daily 

* 



Daily 

3/week + 
Daily 
Daily 

3/week + 
Daily 
Daily 
Daily 
Daily 

Daily 

3/week + 



LEATHER AND LEATHER PRODUCTS 

MINIMUM REQUIREMENTS FOR SIC 3100-3199 

EFFLUENT LIMITED 



REQUIRED TEST 



LOCATION 



E 

2. 



pH 
Temperature, 



°C 
3, BOD, 5-day, 2fl°C 



4, 
5. 



TSS 
COD 



E 
E 
E 
E 
E 



CLASS 
I 

Weekly 
Weekly 
2/month 
2/month 
2/month 



FREQUENCY 

CLASS CLASS 



6^ Ammonia Nitrogen 



II 

Weekly 
Weekly 
Weekly 
Weekly 
Weekly 



ill 

3/week 
3/week 
3/week 
3/week 
Weekly 



Monthly Weekly Weekly 



CLASS 

LY 

Daily 
Daily 
Daily 
Daily 
Daily 
Weekly 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1038 



PROPOSED RULES 



7. 


Oil and Grease 


E 


2/month 


Weekly 


3 /week 


Daily 


8, 


Turbidity 


E 


Weekly 


3 /week 


Daily 


Daily 


9. 


Total Nitrogen 


E 


* 


* 


* 


* 


ia 


Total Phosphorus 


E 


* 


* 


* 


* 


LL 


Toxics and Toxicity 




** 


** 


** 


11 








WATER OUALITY LIMITED 




1. 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3 /week 


Daily 


2. 


Dissolved Oxygen 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 


L 


m 


E 


Weekly 


Weekly 


3/week 


Daily 


4. 


Temperature, C 
Temperature, C 


E 


Weekly 


Weekly 


3/week 


Daily 


5. 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 


6. 


BOD, 5-dav, 20° C 


E 


2/month 


Weekly 


3/week 


Daily 


7. 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 


8. 


COD 


E 


2/month 


Weekly 


3/week 


Daily 


9, 


Ammonia Nitrogen 


E 


2/month 


Weekly 


3/week 


Daily 


10. 


Oil and Grease 


E 


2/month 


Weekly 


3 /'week 


Daily 


11. 


Turbidity 


E 


Weekly 


Weekly 


3/week 


Daily 


12, 


Total Nitrogen 


E 


* 


sgc 


>< 


* 


LL 


Total Phosphorus 


E 


sfc 


* 


* 


* 


14. 


Toxics and Toxicity 




** 


** 


** 


** 


15. 


Conductivity 


E 


Weekly 


Weekly 


3/week 


Daily 


16, 


Conductivity 


U,D 


Weekly 


Weekly 


3/week + 


3/week + 




FABRICATED METAL PRODUCTS EXCEPT ORDINANCE: 




MACHINERY AND TRANSPORTATION EOUIPMENT 








MACHINERY 








ELECTRICAL MACHINERY, EOUIPMENT AND 


SUPPLIES 




MINIMUM REQUIREMENTS FOR SIC 3400-3699 








EFFLUENT LIMITED 




REQUIRED TEST LOCATION 


FREOUENCY 










CLASS 


CLASS 


CLASS 


CLASS 








I 


II 


III 


LY 


L 


m 


E 


Weekly 


Weekly 


3/week 


Daily 


2. 


Temperature, C 


E 


Weekly 


Weekly 


3/week 


Daily 


3. 


Oil and Grease 


E 


2/month 


Weekly 


3/week 


Daily 


4. 


Total Nitrogen 


E 


* 


* 


* 


* 


5_ 


Total Phosphorus 


E 


* 


* 


* 


* 


6, 


Toxics and Toxicity 




** 


** 


** 


** 


7, 


Dissolved Oxygen 


E 


Weekly 


Week 


3/week 


Daily 








WATER QUALITY LIMITED 




L 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3/week 


Daily 


2. 


m 


E 


Weekly 


Weekly 


3/week 


Daily 


3, 


Temperature, C 


E 


Weekly 


Weekly 


3/week 


Daily 


4_ 


Oil and Grease 


E 


2/month 


Weekly 


3/week 


Daily 


5_ 


Total Nitrogen 


E 


* 


He 


* 


* 


6. 


Total Phosphorus 


E 


* 


* 


* 


sje 


L 


Toxics and Toxicity 




** 


*# 


11 


=< >< 






ELECTRICAL, AND GAS SERVICES 






MINIMUM REQUIREMENTS FOF 
EFFLUENT LIMITE 


t SIC 4900- 


4939 




D 





1039 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



F.QUIRED TEST 


LOCATION 

CLASS 


FREOUENCY 

CLASS CLASS 


CLASS 












I 


II 


HI 


IY 




L EH 


E 


Weekly 


Weekly 


Weekly 


Weekly 




2. Temperature, C 


E 


Weekly 


Weekly 


Weekly 


Weekly 




3. Total Nitrogen 


E 


* 


* 


* 


* 




4. Total Phosphorus 


E 


* 


* 


* 


* 




5. Toxics and Toxicity 


** 


** 


** 


** 








WATER OUALITY LIMITED 






1 . Dissolved Oxygen 


E 


Weekly 


Weekly 


Weekly 


Weekly 




2> EM 


E 


Weekly 


Weekly 


Weekly 


Weekly 




4. Temperature, C 


E 


Weekly 


Weekly 


Weekly 


Weekly 




5. Total Nitrogen 


E 


* 


* 


* 


* 




6. Total Phosphorus 


E 


* 


* 


* 


* 




7. Toxics and Toxicity 


** 


** 


II 


11 




lote: The following monitoring for steam electric generating establishments discharging once 


through cooling 


k'ater or cooling tower blow< 


down shall be required whether or not the discharge is from a cl 

LOCATION FREOUENCY 

CLASS CLASS CLASS CLASS 


assified facility. 


IEOUIRED TEST 












I 


II 


III 


IY 




1 . Temperature, C 


E 


Cont. 


Cont. 


Cont. 


Cont. 




2. Temperature, oC 


LL D 


3/ week + 


3/ week + 


3/week + 


3/week + 




3. Flow 




Continuous 

during 
discharge 




Continuous 

during 
discharge 










WATER SUPPLY PLANTS 








MINIMUM REQUIREMENTS FOR SIC 4941 










EFFLUENT LIMITED 






REOUIRED TEST 


LOCATION 

CLASS 


FREOUENCY 

CLASS CLASS 


CLASS 












I 


II 


III 


IY 




1 . Settleable Solids 


E 


Weekly 


Weekly 


Weekly 


Weekly 




2. TSS 


E 


2/month 


2/month 


2/month 


2/month 




3. Turbidity 


E 


Weekly 


Weekly 


Weekly 


Weekly 




4. pH 


E 


Weekly 


Weekly 


Weekly 


Weekly 




5. Chloride 


E 


Weekly 


Weekly 


Weekly 


Weekly 




DOMESTIC WASTEWATER AND OTHER FACILITIES DISCHARGING 








ONLY 


DOMESTIC 








MINIMUM REQUIREMENTS FOR SIC 4952 










EFFLUENT LIMITED 






REOUIRED TEST 


LOCATION 

CLASS 


FREOUENCY 

CLASS CLASS 


CLASS 












I 


II 


III 


IV 




L pH 


E 


2/month 


Weekly 


3/week 


Daily 




2. Temperature, C 

3. BOD, 5-dav. 2r? 


E 


Weekly 


Weekly 


3 /week 


Daily 




L£ 


2/month 


Weekly 


3/week 


Daily 




4. TSS 


LE 


2/month 


Weekly 


3/week 


Daily 




7:10 NORTH CAROLINA REGISTER 


August 14, 1992 




1040 









PROPOSED RULES 






L 


Ammonia Nitrogen 


E 


Monthly 


2/month 


Weekly 


3/week 




6, 


Fecal Coliform 


E 


2/month 


Weekly 


3 /week 


Daily 




7. 


Total Nitrogen 


E 


* 


* 


* 


* 




s\ 


Total Phosphorus 


E 


:}: 


3]C 


* 


* 




9; 


Toxics and Toxicity 




3jea|« 


** 


*>= 


** 










WATER OUALITY LIMITED 






1. 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3/week 


Daily 




2 


Dissolved Oxygen 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 




3_ 


^ 


E 


2/month 


Weekly 


3 /week 


Daily 




4, 


Temperature. C 
Temperature, 


E 


Weekly 


Weekly 


3/week 


Daily 




5. 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 




6^ 


BOD. 5-day. 26° C 


EJ 


2/month 


Weekly 


3/week 


Daily 




7. 


TSS 


EJ 


2/month 


Weekly 


3/week 


Daily 




8. 


Ammonia Nitrogen 


E 


2/month 


Weekly 


3/week 


Daily 




9. 


Residual Chlorine 


E 


Daily 


Daily 


Daily 


Daily 




10. 


Fecal Coliform 


E 


2/month 


Weekly 


3/week 


Daily 




11. 


Fecal Coliform 


U.D 


2/month 


Weekly 


3/week + 


3/week + 




12. 


Conductivity 


E 


Weekly 


Weekly 


3/week 


Daily 




13. 


Conductivity 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 




14. 


Total Nitrogen 


E 


* 


sle 


^ 


* 




15. 


Total Phosphorus 


E 


* 


* 


sje 


* 




16, 


Toxics and Toxicity 




x: x 


** 


>< >< 


^^ 










SERVICES 










MINIMUM REQUIREMENTS FOR SIC 7000-8999 










EFFLUENT LIMITED 






REOUIRED TEST LOCATION 


FREOUENCY 












CLASS 


CLASS 


CLASS 


CLASS 










I 


II 


III 


LY 




1. 


^ 


E 


Weekly 


Weekly 


3/week 


Daily 




2 


Temperature, C 
BOD, 5-day. 20° 


E 


Weekly 


Weekly 


3/week 


Daily 




3_ 


E 


2/month 


Weekly 


3 week 


Daily 




4. 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 




5. 


Ammonia Nitrogen 


E 


Monthly 


2/month 


Weekly 


3/week + 




6, 


Detergents (MBAS) 


E 


2/month 


Weekly 


3/week 


Daily 




L 


Fecal Coliform 


E 


2/month 


Weekly 


3/week 


Daily 




s. 


Total Nitrogen 


E 


* 


* 


* 


* 




9, 


Total Phosphorus 


E 


Monthly 


2/month 


Weekly 


3/week + 




KL 


Toxics and Toxicity 




>< X 


11 


11 


— 










WATER OUALITY LIMITED 






1. 


Dissolved Oxygen 


E 


Weekly 


Weekly 


3 week 


Daily 




2. 


Dissolved Oxygen 


U.D 


Weekly 


Weekly 


3/week + 


3/week + 




3, 


m 


E 


Weekly 


Weekly 


3/week 


Daily 




4. 


Temperature, C 
Temperature, C 


E 


Weekly 


Weekly 


3/week 


Daily 




5_ 


U.D 


Weekly 


Weekly 


3/week + 


3/week 




6, 


BOD. 5-dav. 20° 


E 


2/month 


Weekly 


3/week 


Daily 




7. 


TSS 


E 


2/month 


Weekly 


3/week 


Daily 




S_. 


Ammonia Nitrogen 


E 


Monthly 


2/month 


Weekly 


3/week + 




9, 


Detergents (MBAS) 


E 


2/month 


Weekly 


3 'week 


Daily 




10, 


Fecal Coliform 


E 


2/month 


Weekly 


3/week 


Daily 




n. 


Total Nitrogen 


E 


* 


* 


* 


* 




12. 


Total Phosphorus 


E 


- 


sfe 


JjC 


* 




70-/ J 






7:10 


XORTH CAROLINA REGISTER 


August 14, 199: 



PROPOSED RULES 



13. Toxics and Toxicity ****** ** 

14. Conductivity E Weekly Weekly 3 /week Daily 

15. Conductivity U,D Weekly Weekly 3/week+ 3/week + 

+ Upstream and Downstream monitoring in water quality limited waters is to be sampled conducted 
three times per week during June, July, August, and September, and once per week during the rest 
of the year. 

* Total Nitrogen and Phosphorus Monitoring 

(1) Monitoring Requirements 

(A) All facilities equal to or greater than 50,000 gpd, shall monitor for total N and P. 

(B) Facilities less than 50,000 gpd shall monitor for total N and P when discharging into nutrient 
sensitive waters as designated by the Division. 

(2) Monitoring frequency for total N and P is based on river subbasins in two separate areas of the 
state as follows: 

(A) Western area includes the French Broad, Broad, Savannah, 
New, Watauga, Little Tennessee, and Hiwassee: 
Facility Design Capacity Frequency: Frequency 

(i) 50,000 gpd or higher Semi-annually 

(ii) 1,000,000 gpd or higher Quarterly. 

(B) Piedmont and Eastern area includes the Catawba, Lumber, Yadkin, Cape Fear, Chowan, Neuse, 
Pasquotank, Roanoke, Tar-Pamlico, and White Oak: 

Facility Design Capacity Frequency 

(i) 50,000 gpd or higher Quarterly 

(ii) 1,000,000 gpd or higher Monthly. 

(3) Definition for Total Nitrogen and Total Phosphorus: 

(A) Total Nitrogen shall be the sum of total kjeldahl nitrogen, nitrate nitrogen, and nitrite nitrogen 
expressed as "N" in milligrams per liter (mg/lj. 

(B) Total Phosphorus shall include all orthophosphates and condensed phosphates, both dissolved and 
particulate, organic and inorganic, mea s ur e d a s "P" in expressed as "P" in milligrams per liter 
img/1). 

ii Specific test type, conditions, and limitations will be defined by permit. Toxicity limits will be 
applied to all major discharges and all discharges of complex wastewater. Toxicity limitations and/or 



monitoring requirements may be applied to permits for other discharges when, in the opinion of the Director, 



such discharge may impair the best use of the receiving water by the discharge of &toxic substances in toxic 
amounts. 

Specific frequency will be defined by individual permit conditions. For most facilities with 
continuous and/or regularly occurring discharges, frequency will be defined as a minimum of quarterly. 



Statutory Authority G.S. 143-215.65; 143-215.66; 143-215.68. 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1042 



PROPOSED RULES 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR - Division of 
Environmental Management intends to amend rules 
cited as 15 A NCAC 2H .0102 - .0103, .0105 - 
.0109, .0111 - .0112, .0114 - .0115, .0117 - 
.0118, .0120, .0122 - .0124, .0127, .0138. 

1 he proposed effective date of this action is 
February 1. 1992. 

1 he public hearing will be conducted at 7:00 
p.m. on September 9, 1992 at the Ground Floor 
Hearing Room, Archdale Building, 512 N. 
Salisbury St., Raleigh, NC. 

Jxeason for Proposed Action: The existing rules 
have been in need of updating for several years. 
Several existing operating procedures need to be 
placed in rules and some new requirements are 
being proposed. 

Lsomment Procedures: All persons interested in 
this matter are invited to attend the hearings. 
Comments, statements , data and other information 
may be submitted in writing prior to. during or 
within thirty (30) days after the hearing or may be 
presented orally at the hearing. Oral statements 
may be limited at the discretion of the hearing 
officer. Submittal of written copies of oral 
statements is encouraged. For more information 
about the rules, contact Dennis Ramsey or Boyd 
Devane, Division of Environmental Management, 
P.O. Box 29535, Raleigh, NC 27626-0535, 919- 
733-5083. For copies of the rules, contact Linda 
Jones or Kay Stallings at the same number and 
address. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 

SECTION .0100 - POENT SOURCE 
DISCHARGES TO THE SURFACE WATERS 

.0102 SCOPE 

These Rules apply to all persons: 
( 1 ) discharging or proposing to discharge 
waste to the surface waters of the state; 



or 

(2) discharging or proposing to dischargi 
waste requiring pretreatment to 
treatment works of another; or 

(3) constructing or proposing to construct ; 
treatment or pretreatment works with ; 
discharge as described in Part (1) or (2 
of this Rule; or 

(4) operate or propose to operate a treatmen 
works with a discharge as described ii 
Part (1) or (2) of this Ruler; or 

(5) discharging or proposing to discharg 



stormwater which results in wate 

pollution. 
This Rule does not apply to those persons wh 
have obtained a permit from a local pretreatmen 
control authority, authorized to issue such permits 
and whose pretreatment program was approved ii 
accordance with Section .0900 of this Subchapter 



Statutory Authority G.S. 
143-215.1: 143-215. 3(a)(14). 



143-21 5. 3(a)(1) 



.0103 DEFECTION OF TERMS 

The terms used in this Section shall be as define* 

in G.S. 143-213 and as follows: 

(1) "Authorization to Construct" means 

permit required for the construction o 

water pollution control facilitie; 



necessary' to comply with the terms anc 

conditions of an NPDES permit. 
(2) ^"Certificate of Coverage" means tht 

approval given dischargers that meet th< 

requirements of coverage under a genera 

permit. 
£3} <3)"Committee" means the NPDEJ 

committee of the Environmenta 

Management Commission. 
(4) f3)"Director" means the Director of th< 

Division of Environmental Management 

Department of Environment, Health, anc 

Natural Resources or his designee. 
(5} <4)"EPA" means the United State; 

Environmental Protection Agency. 
(6) {§)" Existing", w ' tn respect tc 

implementing the NPDES permitting 

program, means: 

(a) Facilities which physically exist anc 
have been legally constructed, i.e 
health department or other agency 
approval or constructed prior to an} 
regulatory requirements. 

(b) Facilities which have received ar 
NPDES Permit and have received ai 
Authorization to Construct and hav 



1043 



7:10 NORTH CAROLINA REGISTER August 14, 19% 



PROPOSED RULES 



(c) 



(d) 



m 



m 



m 



110} 



mi 

(a) 



constructed or begun significant 
construction of any wastewater 
treatment facilities within the term of 
the current permit. 

Facilities which have received a phased 
NPDES Permit and have received an 
Authorization to Construct for a phase 
of the permitted flow and have 
constructed or begun significant 
construction of the phased wastewater 
treatment facilities. 

For the purpose of this definition, 

significant construction will be 

considered as more than a token or 

nominal investment of money or other 

resources in the actual construction of 

the wastewater treatment facility, based 

on the facility size, complexity, cost 

and the required construction time for 

completion. 

fl-S)"General Permit" means an NPDES 

"permit" issued under G.S. 

143-215. 1(b)(3) and (4) and 40 CFR 

122.28 authorizing a category of similar 

discharges to surface waters which all 

involve the same or substantially s imilar 

types of operations, discharge the s ame 

type s of waste, require the same effluent 

limitations — er — operating — conditions, 

require the same or similar monitoring, 

and in the opinion of the Director are 

more appropriately controlled under a 

general — permit — than — under — individual 

permit s. 

f+6)"Mine dewatering" means discharges 
of uncontaminated infiltrate and 
stormwater from mine excavation and the 
water that is removed to lower the water 
table to allow mining in an area. 
"Municipality" means a city, town, 
borough, county, parish, district, or other 
public body created by or under State law 
and having jurisdiction over disposal of 
wastewater. 

{6>"NPDES" means the a National 
Pollutant Discharge Elimination 
SystemT permit required for the operation 
of point source discharges [n accordance 
with the requirements of Section 402 of 
the Federal Water Pollution Control Act, 
33 U.S.C. Section 1251 et seq. 
f£)"New", with respect to implementing 
the NPDES permitting program, means: 
Proposed facilities that do not have a 
NPDES Permit nor have any facilities 



fb) 

(c) 



(d) 



(e) 



(12) 



(13) 



(14) 



(15) 



16) 



constructed. 

Facilities which physically exist, 

however are illegally constructed, i.e., 

no required agency approvals. 

Facilities which have received an 

NPDES Permit and have received an 

Authorization to Construct but have not 

begun significant construction of any 

wastewater treatment facilities within 

the term of the current permit. 

Any increases in treatment plant 

hydraulic capacity, which has not 

received an Authorization to Construct 

will be considered new and new 

effluent limitations and other 

requirements, if applicable, would be 

imposed for the entire facility. 

For the purpose of this definition, 

significant construction will be 

considered as more than a token or 

nominal investment of money or other 

resources in the actual construction of 

the wastewater treatment facility, based 

on the facility size, complexity, cost 

and the required construction time for 

completion. 

f8-)"New Source" means any industrial 

installation, from which there may be a 

discharge, the construction or 

modification of which is commenced on 

or after the date of publication of new 

source performance standards and/or or 

pretreatment standards for new sources 

by the Environmental Protection Agency. 

{9) "New Source Performance Standards" 

means those standards of performance 

applied to industrial discharges defined as 

new sources. 

fl^'Notice of Intent" means formal 
written notification to the Division that a 
proposed discharge is intended to be 
covered by a general permit and takes the 
place of "application" used with 
individual permits. 

f4-8-)"Oil terminal storage facilities" 
means petroleum bulk storage, product 
transfer, loading, unloading, and related 
areas but does not include marinas or 
facilities primarily engaged in the retail 
sale of petroleum products. Oil/water 
separators such as those at maintenance 
garages, gas stations, and National Guard 
and military reserve facilities are 
included in this definition. 
f4-9)"Once-through non-contact cooling 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1044 



PROPOSED RULES 



mi 



(18) 
(19) 



20) 



(22) 



(23) 



water" means water taken from wells, 
surface waters, or water supply systems 
and used in a non-contact cooling system 
without the addition of biocides or other 
chemical additives. Boiler blowdown 
waters are included in this definition. 
Nuclear and fossil fuel electric generating 
plants are not included in this definition. 
"Point Source Discharge" means any 
discernible, confined, and discrete 
conveyance, including, but specifically 
not limited to, any pipe, ditch, channel, 
tunnel, conduit, well, discrete fissure, 
container, rolling stock, or concentrated 
animal-feeding operation from which 
wastes are or may be discharged to the 
surface waters of the State. 



fWPOTW" means Publicly Owned 
Treatment Works. 

(44-)"Pretreatment standard" means any 
regulation containing pollutant discharge 
limits for indirect dischargers for 
ensuring compliance with Section 3QF 
307(b) and (c) of the Clean Water Act, 
33 U.S.C. Section 1251 et seq. This 
term includes prohibited discharge limits 
and local sewer use ordinance limits. 
f40)"Primary industry" means an 
industry listed in 40 CFR 122, Appendix 
A which is hereby incorporated by 
reference including any subsequent 
amendments. Copies of this publication 
are available from the Government 
Institutes. Inc., 4 Research Place, Suite 
200, Rockville, MD 20850-1714 for a 
cost of thirty-six ($36.00) each plus four 
dollars ($4.00) shipping and handling. 
Copies are also available at the Division 
of Environmental Management, Archdale 
Building. 512 N. Salisbury Street, 
Raleigh, North Carolina 27604. 
H^)"Professional Engineer" means a 
person who is presently registered and 
licensed as a professional engineer by the 
North Carolina State Board of 
Registration For Professional Engineers 
and Land Surveyors. 
(3Q)"Sand dredge" means a facility to 
remove sand from river bottoms. No 
other mining activities are included in 
this definition. 

(3+) "Seafood packing facility" means a 
business which is primarily engaged in 
the sorting and packing of fresh seafood 
and which has a discharge consisting 



24) 



entirely of washdown and rinse water 
Trout packing facilities are included i: 
this definition. Wastewaters fron 
seafood processing plants are no 
included in this definition. 
"Seafood processing facility" means 
business which is primarily engaged ii 
the removal of heads, fins or scales 
filleting, cooking, canning, or preparatio 



of fresh seafood. 



(25) 



(26) 



(27) 



(28) 

(29) 
(30) 



^44)" Staff" means the staff of th 

Division of Environmental Management 

Department of Environment, Health an< 

Natural Resources. 

(33) "Storm water" means the flow 

water which results from precipitatio 

and which occurs immediately followin 

rainfall or a snowmelt. 

(33) "Swimming pool filter backwash 

means normal filter backwash water fror 

both public and private swimming pool 

as well as spas with backwash filte 

facilities. 

"Tourist Gem Mine" means a busines 



which is primarily engaged in th 
recreational practice of removing gem 
from mined material. 
(34)"Trout farm" means a facility for th 
commercial production of trout. 
{35}" Water filtration facility" mean 
backwash filters and sludge disposa 
systems associated with water treatmen 
plants and backwash filters associate! 
with wells. 



Statutory Authority G. S. 143-215. 3(a)(1); 143-213 



1045 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



0105 APPLICATION: PERMIT FEES: ASSESSMENT FOR NEW SOURCES 

(a) Except as provided in Paragraphs (d) and (e) of this Rule, any person who discharges or who proposes 
o discharge pollutants to the surface waters of the state or to a POTW when pretreatment of the wastewater 
s required shall complete, sign, and submit, in triplicate, an application accompanied by the processing fee 
lescribed herein for each application in the form of a check or money order made payable to N.C. Department 
>f Environment, Health, and Natural Resources. 

The State NPDES application forms to be used for the various types of discharges are as follows: 

Std. Form A: aAll municipal systems greater than or equal to 1 .0 MGD as well as any 

municipal system receiving industrial waste from a primary industry. 
Short Form A: aAny municipal system not covered by Std. Form A. 

Short Form B: All agriculture related discharges. 

Std. Form C: All primary industries as listed in 40 CFR 122.21, or EPA Forms Appendix 

A or and all other industrial process and 1 and 2-C: commercial discharges 

except cooling waters, cooling tower blowdown, and boiler blowdown. 
EPA Forms 1 and 2F: Discharges consisting entirely of stormwater associated with industrial 

activity. 
EPA Forms 1 and 2D: Discharges consisting of stormwater and non-stormwater. 

Short Form C: Cooling waters, cooling tower blowdown, and boiler blowdown. 

Short Form D: All domestic waste discharges not covered by Std. Form A and Short Form 

A. 
Short Form E: Notice of Intent to be covered by general permit for once through 

non contact cooling water s , s tatewide. 

Short Form F: Notice of Intent for mine dcwntcring facilities, statewide. 

Short Form G: Notice of Intent for water filtration facilities, s tatewide. 

Short Form H: Notice of Intent for seafood packing facilitie s , s tatewide. 

Short Form I: Notice of Intent for oil terminal s torage facilities discharging to water 

supply (WS III) waters. 
Short Form J: Notice of Intent for oil terminal s torage facilities discharging to waters, 

other than water supply (WS III) waters. 

Short Form K: Notice of Intent for sand dredges, statewide. 

Short Form L: Notice of Intent for trout farm s , s tatewide. 

Short Form M: Notice of Intent for aquifer restoration. 

Short Form N: Notice of Intent for stormwater discharges, statewide. 

The pretreatment Authorization to Construct and Notice of Intent application forms to be used will be supplied 
by the Division. 

(b) Permit Fees 

(1) Permit Application Processing Fees. For every application for new or renewed NPDES permits.,, 
ef Notice of Intent to be covered by a general permit or Authorizations to Construct , a nonrefun- 
dable application processing fee in the amount stated in Subparagraph (b)(5) of this Rule shall be 
submitted at the time of application. 

{A) — This fee schedule doc3 not apply to renewal of g e neral permit s . 

(A) (6)Each permit or renewal application is incomplete until the processing fee is received. 

(B) {G)For a facility with multiple discharges under a single permit, the application processing fee 
shall be set by the single discharge to the waters of the state with the highest fee in the fee 
schedule. 

(C) {©)No application processing fee will be charged for modification of unexpired permits when the 
modifications are initiated by the Director 

(D) fE)An application processing fee of ftfty one hundred dollars ($5100.00) will be charged for the 
minor modifications listed in Rule .01 14(b) of this Section. 

(E) fF-)A full processing fee will be charged for modifications other than those listed in Rule .01 14(b) 
of this Section; this fee will be in the same amount as shown in Subparagraph (5) of Paragraph 
(c) of this Rule for new applications/modifications. 

(F) (G)Permittees requesting special orders by consent, judicial orders or flow increases under G.S. 
143-215. 67(b), will pay a fee of four hundred dollars ($400.00). 

(2) Annual Administering and Compliance Monitoring Fees. An annual fee for administering and 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1046 



PROPOSED RULES 



(A) 
(B) 



(C) 



(D) 

(E) 
(F) 



compliance monitoring shall be charged in each year of the term of every NPDES permit, ineludin - 
general permits, according to the schedule in Subparagraph (b)(5) of this Rule. 
Collection of annua] fees shall begin on the effective date of this Rule. 

Annual fees must be paid for any facility operating on an expired permit after the effective date 
of this Rule. The Director shall establish an anniversary date for such a facility and notify the 
responsible party of the requirement to pay annual administering and compliance monitoring fees 
For a facility with multiple discharges under a single permit, the annual administering anc 
compliance monitoring fee shall be set by the single discharge to the waters of the state with the 
highest fee in the fee schedule. 
A person with only one permit will be billed annually on an anniversary date to be determines 
by the Division. This will normally be the first day of the month of permit issuance. 
A person with multiple permits may have annual fees consolidated into one annual bill. 
Any permittee which has maintained full compliance with all permit conditions during the 
previous calendar year will have its administering and monitoring annual fee reduced by 2' 
percent. Permittees operating under interim limits, judicial orders, or special orders by consen 
will not be eligible for any discount. Full compliance will be established if it can be certified b; 
the Director that no Notice of Noncompliance or a Notice of Violation was sent to the permittee 
during the compliance period being considered. If a Notice of Noncompliance or a Notice o 
Violation was based on erroneous information, the Director can send a letter of correction to th< 
permittee clearing the record for compliance purposes. 



(G) A discharge which has recognized low potential for environmental impact may be charged the 
same fee schedule as cooling water and domestic waste. — A low potential for environmenta 



impact exists if it can be shown that the effluent flow can be expected to meet all water qualit) 
standards including a BOD 5 concentration of le s s than 2 mg/1 at the outlet of the treatmen 



work s . — Also, intermittent discharges meeting the s e quality criteria with average flows le s s thai 
100.000 GPD but which are permitted at a higher flow may upon request be allowed to meet th 



fee schedule of the cooling water rate of the less than 100.000 GPD category. — Request for thi i 



special consideration should be made as part of the permit application and must be accompanies 
bv documentation of eligibility under this Rul e . Accompanying the payment of the Annua 
Administering and Compliance Monitoring Fee shall be a written description of current waste 



minimization and waste reduction activities during the past annual billing cycle and projected 



(H) 



(3) 
(4) 
(5) 



plans for the present billing cycle to reduce the discharge of wastes and pollutants by sourc 
reduction or recycling. 

Permit Application Processing Fees and Annual Administering and Compliance Monitoring Fee; 
for pretreatment facilities permitted by the Division shall be at the same rate as provided ii 
Subparagraph (b)(5) of this Rule. 
No fees are required to be paid under this Rule by a farmer who submits an application or receive; 
a permit that pertains to farming operations. 

Failure to pay an annual fee within 30 days after being billed may cause the Division to initiat 
action to revoke the permit. 
Schedule of Fees: 

ANNUAL ADMINISTERING 
PERMIT APPLICATION AND COMPLIANCE 

PROCESSING FEE MONITORING FEE 



NEW- 
APPLICATIONS 
MODIFICATIONS/ 
LATE RENEWALS 



CATEGORY 

> 10,000,000 GPD 

Industrial 
Domestic/Cooling Water 



S400. 
400. 



TIMELY 
RENEWALS 
WITHOUT 
MODIFICATIONS 



S400. 
400. 



IN 
STANDARD COMPLIANCE 



51500 
1500. 



$1125. 
1125. 



1047 



7:10 NORTH CAROLINA REGISTER August 14, 1991 



PROPOSED RULES 



,000,001 - 10,000,000 GPD 
ndustrial 400. 

)omestic/Cooling Water 400. 



n 



00,001 - 1,000,000 GPD 
dustrial 400. 

)omestic/Cooling Water 400. 

001 -^=100,000 GPD 



ndustrial 400. 

)omestic/Cooling Water 400. 



300. 


1500. 


1125 


300. 


1200. 


900 


250. 


800. 


600 


250. 


600. 


450 


200. 


600. 


450 


200. 


450. 


300 



:/= 



,000 GPD and 



ingle family dwelling 240. 



tormwater- 
/lunicipal Sep. 
Itorm water Sys. 
ndustrial Activity 

itorm water 

encral Permits 



eneral Permits 



Construction (Stormwater) 



Domestic 



)thers 



400. 



400. 

50, 
240. 
400. 



120. 



400. 



600. 



450. 



400. 


600. 


450. 


$309. 


$4O0r 


g-gp 


5JL 


n/a 


n/a 


120. 


n/a 


n/a 


400. 


n/a 


n/a 



Authorization to Construct 



Facility Design Flow) 



= 100,001 GPD 
= 100,000 GPD 



1.000 GPD 



400. 
200. 
100. 



n/a 


n/a 


n/a 


n/a 


n/a 


n/a 


n/a 


n/a 


n/a 



(6) If the total payment for fees required for all permits under G.S. 143-215.3(a)(lb) for any single 
facility will exceed seventy-five hundred dollars ($7,500.00) per year, the» the total for all these 
fees will be reduced for this facility so that the total payment is seventy-five hundred dollars 
($7,500.00) per year 

(7) A portion of the permit application processing fees shown in the fee schedule in Subparagraph 
(b)(5) of this Rule will be transferred into the Wastewater Treatment Works Emergency 
Maintenance, Operation and Repair Fund according to the following schedule: 

All nonmunicipal facilities treating wastewater which is predominantly domestic waste with design 

flows of 100,000 gallons per day or less, except single family dwellings, seventy-five dollars 

($75.00); 

Single family dwellings, forty dollars ($40.00); 

All other facilities, zero. 

(8) When the total value of the Wastewater Treatment Works Emergency Maintenance, Operation and 
Repair Fund, as certified by the State Treasurer, is at least seven hundred fifty thousand dollars 
($750,000.00) at the end of a quarter, the permit application processing fees for facilities with 
discharges of one hundred thousand gallons per day (100,000 GPD) or less shall be reduced by the 
amounts being transferred under Subparagraph (7) of this Paragraph. This reduction shall continue 
until, at the end of some subsequent quarter, the State Treasurer certifies that the fund's balance 
is less than seven hundred fifty thousand dollars ($750,000.00), in which case the full amount of 
the permit application processing fees as listed in Subparagraph (h)(5) of this Rule shall be charged. 

(9) In order to avoid violation of the statutory limit that total permit fees collected in any year not 



(A) 



(B) 
(C) 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1048 



PROPOSED RULES 



exceed 30 percent of the total budgets from all sources of environmental permitting and compliano 
programs, the Division shall in the first half of each state fiscal year project revenues from al 
sources including fees for the next fiscal year. If this projection shows that the statutory limit wil 
be exceeded, rulemaking shall be commenced in order to have an appropriately adjusted fe« 
schedule which will avoid excessive revenue collection from permit fees. 
(10) Any applicant whose facility qualifies for a general permit under Rule s Rule .0127 of this Sectioi 
may pay the lower fees set in Subparagraph (b)(5) of this Rule for the appropriate general permit 

(c) Applicants for new NPDES permits projects requiring construction of wastewater control facilities shal 
in addition to applications required in Paragraph (a) of this Rule, file, in triplicate, an engineering proposa 
setting forth the following information: 

( 1 ) a description of the origin, type and flow of waste which is proposed to be discharged 
Justification and a demonstration of need shall be provided for expected flow volumes. Flow shal 
be determined in accordance with Rule H .0219(1) of this Chapter; 

(2) a summary of waste treatment and disposal options that were considered and why the propose 
system and point of discharge were selected; the summary should have sufficient detail to assur 
that the most environmentally sound alternative was selected from the reasonably cost effectiv 
options; 

(3) a narrative description of the proposed treatment works including type and arrangement of majo 
components, in sufficient detail to assure that the proposed facility has the capability to compl 
with the permit limits; for commonly used treatment system or components with well establisha 
treatment capabilities, detailed plans and specifications need not be submitted until the applicatio 
for the authorization to construct; however, detailed plans and specifications shall be required wit 
the permit application for any system or component without well established treatment capabilitie 
for the nature of waste or degree of treatment needed to meet the permit limits; 

(4) a general location map, showing orientation of the facility with reference to at least two geographi 
references (numbered roads, named streams /rivers, etc.); 

(5) a scale location plan of the site showing location of the proposed treatment works and the propose 
point of discharge; 

(6) special studies or modelling may be required in cases where the impacts of the discharge cannc 
be readily determined by the Division; 

(7) a statement to demonstrate financial qualification and substantial previous compliance with feden 
and state laws, regulations, and rules for the protection of the environment as required by G.S 
143-215. 1(b)(4)(b). 

(d) Applicants for new individual NPDES permits requiring construction of storm water control facilitie 



shall in addition to applications required in Paragraph (a) of this Rule, design and construct the facilities i 
accordance with criteria approved by the Director, or shall file jji triplicate, an engineering proposal settin 
forth the information required in Paragraph (c) of this Rule. 

(e) f4)Applications for permit renewals shall be accomplished by filing the appropriate application form a 
listed in Paragraph (a) of this Rule, with the processing fee described herein in the form of a check or mone 
order made payable to N.C. Department of Environment, Health, and Natural Resources, at least 180 day 
prior to expiration of a permit. Renewal requests received less than 180 days prior to permit expiration wi 
be required to pay the new application/modification/late renewal fee rather than the timely renewal withoi 



modification fee. The notice and public participation procedures set forth in Rules .0109 and .01 11 of th 
Section shall be followed for each request for permit renewal reissuance of the permit . An acceptable residua 



management plan shall be submitted with the application for permit renewal in accordance with Rul 
.0138(b)(8) of this Section. Authorizations to Construct permits for wastewater control facilities will not b 
subject to the notice and public participation procedures set forth in Rules .0109 and .01 1 1 of this Sectior 



Authorizations to Construct may be issued for any length of time, however, the NPDES permit must be i 
effect at time of construction. All applications are incomplete until required processing fees are received, an 
may be returned to the applicant. 

(f) fe)Applications for permits for pretreatment facilities shall be made in triplicate upon forms approve 
by the Director and submitted along with applicable supporting information to the Division of Environment 
Management. 

(g) ft-) Applications Applicants for permits for new discharges which propose to discharge industrial proces 
or domestic wastewater in excess of 5400,000 gallons per day or 10 MOD of cooling water or any oth < 



1049 7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



- o pooed discharge of 1 MGD or greater to the surface waters shall file, in addition to the applications and 
lpporting documents required in Paragraphs (a) and (b) of this Rule, an assessment which shall meet the 
quirements of 1 NCAC 25 .0502. sufficient to describe the impact of th e propo s ed Qction upon the waters 



Rhc area. — As a minimum, the a ss e s sment s hall contain the following: 

{4-) Cover Sheet. — The cover sheet shall indicate the nature of the proposed action, the name of the 

permit applicant, the date of the assessment, and the signature of the re s ponsible company official. 

Qr) The assessment shall identify, develop, and analyze the pertinent issue s concerning the impact on 

the aquatic environment as follow s : 
(A) — Background and de s cription of the proposed discharge: The asses s ment shall describe the 
proposed discharge, its product or purpose, its location, and its construction and operation time 
schedule in a s broad a context a s i s reasonable. — The relation s hip of the project to other project s 
and proposals directly affected by or s temming from the con s truction and operation of the 
discharge should be discussed. — Maps, photos, or artist s ketche s s hould be incorporated if 
available to help depict the environmental setting and, if not available, s upporting documents 
should be referenced. 
(B) — Alternatives available for treatment or other control methods should be de s cribed, developed and 
objectively weighed again s t th e proposed discharge. — The analy s i s s hould be sufficiently detailed 
to allow for comparative evaluation of impact s on the aquatic environment. — The analysis of 
alternatives shall be compared to the existing aquatic environment. 
{€-) — The assessment should discu ss the primary and secondary environmental impacts both beneficial 
and adverse. The scope of the description s hould include both short term and long term impacts. 
{©) — Adverse impacts which cannot be avoided should the permit be i ss ued should be described in 
detail and proposed remedial or protective measures which will be taken to minimize such impacts 
should be de s cribed. — This shall be a description of the extent to which the propo s ed activity 
involves trade offs between s hort term environmental gains at the expense of long term losses or 
vice versa and the extent to which propo s ed actions may foreclose future options. The assessment 
must adequately addre s s irreversible and irretrievable commitment s of aquatic re s ources which 
will result if th e permit issued. 
$¥) Any assessment which is required by any other state agency or any federal agency shall be deemed 
to comply with requirements of this Subsection provided aquatic impacts are adequately addressed. 
(h) fg)Permits which result in construction of facilities which will be funded by public monies may require 
nvironmental documentation pursuant to North Carolina Environmental Policy Act, NCGS 113A. NPDES 
lermit applications for which such documentation is required will be considered incomplete until supported 
ly the required documentation. 

(i) Applicants for permits for new nonmunicipal domestic wastewater discharges shall file a notarized 
tatement indicating whether or not each city or county government having jurisdiction over any part of the 



10402-9325 at a cost of thirty dollars ($30.00). 



ands on which the proposed facility is to be located has a zoning or subdivision ordinance in effect, and, if 
uch an ordinance is in effect, whether or not the proposed facility is consistent with the ordinance. 
(j} {fr)For NPDES permits, a full disclosure of all known toxic components that can be reasonably expected 
o be in the discharge, including but not limited to those contained in a priority pollutant analysis, must be 
ubmitted for all primary industrial direct discharges in accordance with 40 CFR 122.21 Appendix D which 
ire adopted by reference as amended through January 1 , 1986 hereby incorporated by reference including any 
iubsequent amendments and editions, and for other direct discharges as required by the Director. This 



naterial is available for inspection at the Department of Environment, Health, and Natural Resources, 



Division of Environmental Management. 512 N. Salisbury Street, Raleigh, North Carolina. Copies may be 



Jbtained from the Superintendent of Documents, U.S. Government Printing Office, Washington D.C. 



'tatutory Authority G.S. 143-21 5. 1(c); 143-21 5. 3(a); 143-215. 3B; 143-215. 1(c)(6) 

0106 FILING APPLICATIONS (b) All NPDES permit applications, except those 

(a) Permit applications shall be filed with the addressed in Paragraph (d) of this Rule, shall be 

Director, Division of Environmental Management, filed at least 180 days in advance of the date on 

P.O. Box 2 7687 9535. Raleigh, North Carolina, which an existing permit expires or in sufficient 

-764426-0535. time prior to the proposed commencement of a 



7:70 NORTH CAROLINA REGISTER August 14, 1992 1050 



PROPOSED RULES 



waste discharge to ensure compliance with all legal 
procedures. 

(c) All Authorization to Construct applications 
shall be filed at least 90 days jn advance of the 
proposed commencement date of construction of 
water pollution control facilities or 90 days in 
advance of advertisement for construction bids but 
no earlier than the establishment of effluent 
limitations by means of a finalized Wasteload 
Allocation. 

(d) All NPDES storm water construction permit 
applications shall be filed at least 30 days in 
advance of the proposed commencement date of 
land disturbing activity which results in a 
stormwater discharge. 

(e) fe^Permit applications filed with the Director 
shall be signed as follows: 

(1) in the case of corporations, by a 
principal executive officer of at least 
the level of vice-president, or his duly 
authorized representative, if such 
representative is responsible for the 
overall operation of the facility from 
which the discharge described in the 
permit application form originates; 

(2) in the case of a partnership or a limited 
partnership , by a general partner and in 
the ca s e of a limited partner s hip, by a 
general partner; 

(3) in the case of a sole proprietorship, by 
the proprietor; 

(4) in the case of a municipal, state, or 
other public entity by either a principal 
executive officer, ranking elected 
official or other duly authorized 
employee. 

(f) The following discharges are deemed to be 
permitted pursuant to G.S, 143-215. 1(c) provided 
that no water quality standards are contravened 
and it shall not be necessary for the Division to 
issue separate permits for these activities: 

(1) filter backwash and draining associated 
with swimming pools; 
c ondensate fro m residential or 
commercial air conditioning units; 
individual non-commercial vehicle 
washing o perations; 
flushing and hydrostatic testing water 
associated with utility distribution 
systems; 

groundwaters generated by well 
construction or other construction 
activities; 



(21 

14] 
ill 
16] 



landscape irrigation, foundation or 
footing drains, or water from crawl 



space pumps; 

(7) street wash water; and 

(8) flows from fire fighting. 

The Director may determine that a facility or 
class of facilities should not be deemed to b 
permitted in accordance with this Rule and thj 
facility or class of facilities would be required t< 
obtain individual permits or coverage under : 
general NPDES permit. This determination wil 
be made based upon existing or projectet 



environmental impacts or contravention of wate 
quality standards associated with the particula 
discharge or discharges. 



Statutory Authority 
143-21 5. 1(c). 



G.S. 143-21 5. 3(a)(l, 



.0107 STAFF REVIEW AND EVALUATION 

(a) The Director is authorized to accep 
applications for the Commission and shall refer al 
applications to the staff for review and evaluation 
Additionally, the Director shall refer NPDE? 



Permit applications for the discharge disposal o 
waste into waters classified as sources of publit 
water supply ( WS classification WS II and III ) ani 
shellfish waters classified SA to the Division o 
Environmental Health, Department o 
Environment, Health, and Natural Resources, fo 
review and written approval. 

(b) The Director shall acknowledge receipt of i 
complete NPDES or Authorization to construe 



application or, if not complete, s hall may rerun 
the application to the applicant as incomplete o 
request the with a statement of what additiona 
information is required. The applicant may b 
given up to sixty (60) days to provide th 
information to make the application complete. 

(c) Tentative Determination and Draft individ ua 
NPDES Permit. 

(1) The staff shall conduct a siti 
investigation including an on-sitt 
inspection and shall prepare its writtet 
evaluation and tentative determinatioi 
to issue or deny the NPDES permit 
Site investigations will not be necessan 



for Authorization to Construct permit! 



and activities covered under genera 



(2) 



(A) 



permits. 

If the staffs tentative determination ii 
Paragraph (1) of this Subdivision is tc 
issue the permit, it shall if necessary 
make the following additiona 
determinations in writing: 
proposed effluent limitations for thos< 
pollutants proposed to be limited; 



1051 



7:10 NORTH CAROLINA REGISTER August 14, 1991 



PROPOSED RULES 



(B) a proposed schedule of compliance, 
including interim dates and 
requirements, for meeting the 
proposed effluent limitations; and 

(C) a brief description of any other 
proposed special conditions which 
will have significant impact upon the 
discharge described in the application. 

(3) The staff shall organize the 
determinations made pursuant to 
Paragraphs (1) and (2) of this 
Subdivision into a draft permit, 
(d) In the case of permits for which notice of 
itent is given on short forms E through N as 
escribed in Rule .0105(a) of this Section, a 
ertificate of Coverage under a general permit 
tall be prepared and issued directly to the 
jplicant in lieu of any other acknowledgement. 
■ the Notice of Intent is unacceptable, it will be 
:turned to the applicant with a brief explanation. 

tatutory Authority G.S. 130-161; 143-215. 3(a)(1); 
43-215. 3(a)(4); 143-215. 1(a); 143-215. 1(c). 

0108 FACT SHEETS 

(a) For all discharges which do not qualify for 
general NPDES permit and which have a total 
olume of 500,000 or more gallons on any day, or 
s may be determined by the Director, a fact sheet 
roviding a brief synopsis of the application shall 
e prepared by the staff and made available upon 
equest following issuance of the public notice. 
Tie contents of such fact sheets shall include at 
ast the following information: 

(1) a sketch or detailed description of the 
location of the discharge described in 
the application; 

(2) a quantitative description of the 
discharge described in the application 
which includes at least the following: 

(A) the rate or frequency of the proposed 
discharge; if the discharge is 
continuous, the average daily flow in 
gallons per day or million gallons per 
day; 

(B) for thermal discharges subject to 
limitation under the act, the average 
summer and winter temperatures in 
degrees Fahrenheit; and 

(C) the average daily discharge in pounds 
per day of any pollutants which are 
present in significant quantities or 
which are subject to limitations or 
prohibition; 

(3) the tentative determinations required 



under Rule. 0107 of this Section; 

(4) a brief citation of the water quality 
standards and effluent standards and 
limitations applied to the proposed 
discharge, including a brief 
identification of the uses for which the 
receiving waters have been classified; 
and 

(5) a fuller description of the procedures 
for the formulation of final 
determinations than that given in a 
public notice including: 

(A) the 30-day comment period required 
by Rule .01 10 of this Section, 

(B) procedures for requesting a public 
meeting and the nature thereof, and 

(C) any other procedures by which the 
public may participate in the 
formulation of the final 
determinations. 

(b) Any person, upon request, will be furnished, 
without charge, one copy of any fact sheet. 

Statutory Authority G.S. 1 43-21 5. 3(a)(1); 
143-215. l(c)(2)(i); 

.0109 PUBLIC NOTICE 

(a) Notice of Application 

(1) Public notice of each complete 
individual NPDES permit and each 
general NPDES permit application shall 
be circulated in the geographical areas 
of the proposed discharge by the 
Director at least 45 days prior to any 
proposed final action: 

(A) by publishing the notice one time in a 
newspaper having general circulation 
in said county; and 

(B) by mailing the notice to all persons or 
agencies listed in Subsection (c) of 
this Rule. 

(2) The notice shall set forth at least the 
following: 

(A) name, address, and phone number of 
the agency issuing the public notice; 

(B) name and address of each applicant; 

(C) brief description of each applicant's 
activities or operations which result in 
the discharge described in the NPDES 
application; 

(D) name of waterway to which each 
discharge is made and a short 
description of the location of each 
discharge on the waterway indicating 
whether such discharge is a new or an 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1052 



PROPOSED RULES 



existing discharge; 

(E) a statement of the tentative 
determination to issue or deny an 
NPDES permit for the discharge 
described in the NPDES application; 

(F) a brief description of the procedures 
for the formulation of final 
determinations, including a 30-day 
comment period and any other means 
by which interested persons may 
influence or comment upon the 
determinations; and 

(G) address and phone number of state 
agency premises at which interested 
persons may obtain further 
information, request a copy of the 
draft permit, request a copy of the 
fact sheet, and inspect and copy 
NPDES application forms and related 
documents. Copies of the fact sheet 
shall be made available free upon 
request. Copies of the information on 
file, other than fact sheets, will be 
made available upon request and 
payment of the cost of reproduction. 

(3) Public notice for those activities 
covered by general permits Certificates 
of Coverage issued pursuant to a 
general permit and Authorizations to 
Construct shall not be required. 
(b) Notice of Public Meeting 

(1) Notice of public meeting on any 
NPDES permit application shall be 
circulated in the geographical areas of 
the proposed discharge by the Director 
at least 30 days prior to the date of the 
meeting: 

(A) by publishing the notice one time in a 
newspaper having general circulation 
in said county; 

(B) by mailing the notice to all persons 
and government agencies which 
received a copy of the notice or the 
fact sheet for the NPDES application; 
and 

(C) by mailing the notice to any person or 
group upon request. 

(2) The content s of public notice of any 
public meeting shall include at least the 
following: 

(A) name, address, and phone number of 
agency holding the public meeting; 

(B) name and address of each applicant 
whose application will be considered 
at the meeting; 



(C) 



(D) 



(E) 

(F) 

(G) 



(H) 



name of waterway to which eacl 
discharge is made and a shor 
description of the location of eacl 
discharge on the waterway; 
a brief reference to the public notice 
issued for each NPDES applicatioi 
including identification number anc 
date of issuance; 
information regarding the time anc 
location for the meeting; 
the purpose of the meeting; 
address and phone number 
premises at which interested person; 
may obtain further information 
request a copy of each draft NPDE5 
permit, request a copy of each fac 
sheet, and inspect and copy NPDE5 
forms and related documents; and 
a brief description of the nature of tht 
meeting including the rules anc 
procedures to be followed; The notice 
shall also state that additiona 
information is on file with the 
Division of Environmenta 
Management, Department 



Environment, 
Resources 



Health, and Natura 
a-n-d Com munit' 



Development at the Archdale Buildinj 

at 512 North Salisbury Street 

Raleigh, North Carolina, and may b( 

inspected at any time during norma 

working hours. Copies of th( 

information on file will be mad< 

available upon request and payment o 

cost of reproduction. 

(c) Mailing Lists. Any person may request t< 

receive copies of all notices required under thi 

Rule and the Director shall mail such notice to an 

such person. An annual charge of twenty-fiv 



dollars ($25.00) may be charged for any persoi 
desiring to be placed and maintained on th 
NPDES Permit mailing list. The Director shal 
also give notice to the following for NPDE5 
permits: 

State water pollution control agency fo 
the States of Virginia, South Carolina 
Tennessee, and Georgia; 
Appropriate district engineer, U.S 
Army Corps of Engineers; 
Lead agency responsible for preparatioi 
of plan pursuant to Section 208(b) o 
the Clean Water Act, 33 U.S.C 
Section 1251 et seq, in approved 20: 
areas; 
(4) State agency responsible for thi 



(1) 

(2) 
(3) 



1053 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



preparation of plans pursuant to Section 
303(e) of the Clean Water Act, 33 
U.S.C. Section 1251 et seq; 

(5) North Carolina Department of 
Environment, Health, and Natural 
Resources Human Resources , Division 
of Environmental Health; and Services, 
and appropriate local health agency; 

(6) Any other federal, state, or local 
agency upon request ; and 4 

^7) The local governmental unit or units 

having — juri s diction over s pecific 

re s idential — projects — as — specified — m 
N.C.G.S. 113 215.1(dl). 

atutory Authority G.S. 143-215. 1(a)(1); 
f3-215.1(c); 143-215. 4(a); 143-21 5.4(c); 



111 MEETINGS AND HEARINGS 

a) Public Meetings: 

(1) The Director shall provide an 
opportunity for the applicant, any 
affected state, any affected interstate 
agency, the regional administrator, or 
any interested agency, person, or group 
of persons to request or petition for a 
public meeting with respect to NPDES 
permit applications. Any person who 
desires a public meeting on any NPDES 
permit application shall so request in 
writing to the Director within 30 days 
following the publication date of the 
notice of application. Any such request 
or petition for public meeting shall 
indicate the interest of the party filing 
such request and the reasons why a 
meeting is warranted. 

(2) The Director shall consider all such 
requests for meeting and, if he 
determines there is a significant public 
interest and additional information may 



be obtained from the meeting process 
pertaining to water quality impacts or 
uses of the waters, shall issue public 
notice of meeting. Instances of doubt 
shall be resolved in favor of holding the 
meeting. 

(3) All comments received within 30 days 
following the publication date of the 
notice of NPDES permit application 
shall be made part of the application 
file and shall be considered by the 
Director prior to taking final action on 
the application. 

(4) Any meeting brought pursuant to this 



Subsection shall be held in the 
geographical area of the proposed 
discharge or other appropriate area, in 
the discretion of the Director, and may, 
as appropriate, consider related groups 
of permit applications, 
(b) Adjudicatory Hearings and appeals shall be 

conducted in accordance with Article 3 of Chapter 

150B of the General Statutes. 

Statutory Authority G.S. 143-215. 3(a)(1); 
143-215. 1 (c)(1);! 43-215. 3(a)(3);143-215. 3(a)(4); 
143-215.5; 143-215. 1(e); 

.0112 FINAL ACTION ON PERMIT 
APPLICATIONS 

(a) The Director shall take final action on all 
NPDES applications not later than 60 days 
following notice of application or, if a public 
meeting is held, within 90 days following the 
closing of the record of the meeting or in the case 
of an Authorization to Construct prctrcatment 
permit 90 days after the receipt of a complete 
application or^ if a public meeting is held 
concerning the Authorization to Construct, within 
90 days following the closing of the record of the 
meeting ^ 

(b) The Director is authorized to: 

(1) issue a permit containing such 
conditions as are necessary to effectuate 
the purposes of G.S. 143-215.1 and 
G.S. 143-215.67; 

(2) issue a permit containing time schedules 
for achieving compliance with 
applicable effluent standards and 
limitations, water quality standards, and 
other legally applicable requirements; 

(3) modify or revoke any permit upon 
giving 60 days notice to the person 
affected pursuant to Rule .0114(a) of 
this Section; 

(4) suspend a permit pursuant to Rule 
.0114(a) of this Section; 

(5) rescind a permit upon request by the 
permittee; 

(6) f5)deny a permit application: 

(A) where necessary to effectuate the 
purposes of Article 21 Chapter 143, 

(B) for a discharge prohibited by G.S. 
143-214. 2(a), 

(C) where the Secretary of the Army finds 
the discharge would substantially 
impair anchorage and navigation, 

(D) for a discharge to which the regional 
administrator of EPA has objected as 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1054 



PROPOSED RULES 



provided in Section 402(d) of the 
Clean Water Act as amended, 33 
U.S.C. Section 1251 et seq, 
(E) for any point discharge which 
conflicts with a plan approved 
pursuant to Section 208(15) of the 
Clean Water Act as amended, 33 
U.S.C. Section 1251 et seq, effective 
February 4, 1987. 

(c) The permit applicant has the burden of 
providing sufficient evidence to reasonably ensure 
that the proposed system will comply with all 
applicable water quality standards and 
requirements. No permit may be issued when the 
imposition of conditions cannot reasonably ensure 
compliance with applicable water quality standards 
and regulations of all affected states. 

(d) The Director shall submit to the Commission 
at its regular meetings a report which contains the 
action taken by the Division with respect to any 
permit application since the last commission 
meeting. 

(e) Permits shall be issued or renewed for a 
period of time deemed reasonable by the Director 
except in no case shall permits be issued for a 
period to exceed five years. 

Statutory Authority G.S. 143-215. 3(a)(1); 

143-215. 1(c)(4); 143-215. 1(b); 143-215. 3(a)(3); 
143-215. 3(a)(4); 143-215 .1 (c)(5); 
143-214. 2(a);143-215; 143-215. 2(a). 

.0114 MODIFICATION AND REVOCATION 
OF PERMITS 

(a) Any permit issued pursuant to this 
Regulation is subject to revocation or modification 
in whole or part pursuant to 40 CFR 122.62 or for 
good cause including but not limited to: 

(1) violation of any terms or conditions of 
the permit; 

(2) obtaining a permit by misrepresentation 
or failure to disclose fully all relevant 
facts; 

(3) a change in any condition that requires 
either a temporary or permanent 
reduction or limitation of the permitted 
discharge; and 

(4) refusal of the permittee to permit the 
Director or his authorized 
representative upon presentation of 
credentials: 

(A) to enter upon permittee's premises in 
which an effluent source is located or 
in which any records are required to 
be kept under terms and conditions of 



the permit, 

(B) to have access to any copy an 
records required to be kept unde 
terms and conditions of the permit 

(C) to inspect any monitoring equipmen 
or method required in the permit, oi 

(D) to sample any discharge of pollutants 
(5) failure to pay the annual fee fo 

administering and complianc 

monitoring, 
(b) Modifications and reissuance of permits shal 
be subject to the same public notice and othe 
procedural requirements as the issuance of permit 
except as follows: 

(1) modifications of the monitorin 
program contained in the permit, 

(2) name changes or changes in th 
ownership of the discharge when n< 
other change in the permit is indicated 

(3) a single modification of any complianc 
schedule not in excess of four months 

(4) modification of compliance schedule 
(construction schedules) in permits fo 
new sources where the new source wil 
not begin to discharge until contro 
facilities are operational, 

(5) modifications to include or amem 
pretreatment program requirementST 

(6) issuance of permits revoked for failur 



ill 



to pay the annual administering an 
compliance monitoring fee, 
modifications determined by th 
Director to be minor, such 
typographical errors, incorrect maps 
and similar minor changes. 



The Director may disallow these exemptions on 
case by case basis. Requirements for complet 
reevaluation and processing of the permit, such a 
the public notice requirement, shall be made on 
case by case determination by the Director. 

Statutory Authority G.S. 143-215. 3(a)(l, 
143-215. 1(b)(3). 

.0115 PUBLIC ACCESS 

(a) All records, reports, and informatio 
required to be submitted to the Commission or th 
Director; any public comment on these records 
reports or information; and the draft and fine 
permits shall be disclosed upon request to th 
public unless the person submitting the informatio 
can show that such information, if made public 
would disclose methods or processes entitled t< 
protection as trade secrets. 

(b) The Director is authorized to determin 



1055 



7:10 NORTH CAROLINA REGISTER August 14, 199. 



PROPOSED RULES 



brmation which is entitled to confidential 
atment. In the event the Director determines 
it such information (other than effluent data) is 
titled to confidential treatment, he shall take 
:ps to protect such information from disclosure, 
shall submit the information considered to be 
nfidential to the Regional Administrator, EPA, 
:gion IV, for concurrence in his determination of 
nfidentiality. 
c) The Director shall: 

(1) provide facilities for the inspection of 
information relating to permit 
applications and permits, 

(2) ensure that the staff handle request for 
such inspections promptly, 

(3) ensure that copying machines or devices 
are available for a reasonable fee. 



atutory Authority G.S. 143-215. 3(a)(1); 
13-21 5. 3(a)(2); 143-215. 3(a)(4); 132-6; 
13-215.65. 

117 INVESTIGATIONS: MONITORING: 
AND REPORTING 

(a) Staff of the Department of Environment, 
ealth and Natural Resources and Community 



cvclopmcnt are authorized to conduct any 
vestigations as provided in G.S. 143-215. 3(a)(2), 
'), and (9) for the purpose of determining 
mpliance with water quality standards, effluent 
mitations, permit conditions and any duly adopted 
lie of the Commission. 

(b) Any person subject to the provisions of G.S. 
43-215.1 shall comply with the monitoring and 
sporting requirements of Rules in Section 15A 
ICAC 2B .0500. 

tatutory Authority G.S. 143-215. 3(a)(1); 
43-215. 3(a)(4);! 43-21 5. 3(a)(2);143-215. 3(a)(7); 
43-215. 1(b)(1); 143-215. 3(a)(9); 143-215.63. 

9118 EFFLUENT LIMITATIONS 
AND STANDARDS 

Any state NPDES permit or state permit for a 

retrcatmcnt facility will contain effluent 

imitations and standards required by 15A NCAC 
B .0400 and the Clean Water Act as Qmcndcd 



tirough February 4 , 1987 or any later adopted 
mendments or editions of this document as is 



llowcd by G.S. 150B 1 4 . (c). which ]s hereby 
ncorporated by reference including any subsequent 



mendments and editions. This- material is 



tvailable for inspection at the Department of 



nvironment. Health, and Natural Resources, 



division of Environmental Management, 512 N. 



Salisbury Street, Raleigh, North Carolina. Copies 
of the Clean Water Act may be obtained from the 



Superintendent of Documents, U.S. Government 
Printing Office, Washington D.C. 20402-9325 at 
a cost of fifty dollars ($50.00). That rule contains 
the effluent standards and limitations for ensuring 
compliance with Sections 301, 302, 306, and 307 
of the Clean Water Act. For effluent limited 
stream segments, the rule adopts incorporates by 
reference federal effluent limitations and guidelines 
as state effluent limitations and guidelines. For 
water quality limited stream segments, the rules 
provide that effluent limitations be calculated by 
the staff and approved by the Director, to comply 
with Section 301(b)(1)(C) of the federal act. 

Statutory Authority G.S. 143-213(23); 143-215; 
143-21 5. 1(b)(1); 143-215. 3(a)(1). 

.0120 LIMITATION ON DELEGATION 

The Director is authorized to delegate any or all 
of the functions contained in this Rule except the 
following: 

(1) denial of a permit application, 

(2) suspension of a permit, 

(3) revocation of a permit not requested by 
the permittee , 

(4) modification of a permit where initiated 
by the Division and which does not fall 
within the exceptions listed in Rule 
.0114(b) of this Section, or 

(5) determination of confidentiality. 



Statutory Authority 
143-215. 3(a)(4). 



G.S. 143-215. 3(a)(1); 



.0122 CONCENTRATED ANIMAL 
FEEDING OPERATIONS 

Part 122.23 of Title 40 of the Code of Federal 
Regulations, as revised April 1, 1983, entitled 
"Concentrated Animal Feeding Operations", is 
hereby incorporated by reference including any 
subsequent amendments and editions. This 
material is available for inspection at the 
Department of Environment, Health, and Natural 
Resources, Division of Environmental 
Management, 512 N. Salisbury Street, Raleigh, 
North Carolina. Copies may be obtained from the 
Superintendent of Documents, U.S. Government 
Printing Office, Washington D.C. 20402-9325 at 
a cost of thirty dollars ($30. 00). adopt e d a s part of 
th e R e gulations of this Section. 

Statutory Authority G.S. 143-213(24); 143-215; 
143-215.1; 143-215. 3(a)(1). 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1056 



PROPOSED RULES 



.0123 REQUIREMENTS: EVALUATING 

FEEDLOT PERMIT APPLICATIONS 

(a) Guidelines. Upon identifying any 

concentrated animal feeding operation or animal 
feeding operation that the staff has reason to 
believe should or could be regulated under this 
permit program, the staff shall conduct an on-site 
inspection of such operation, and shall make the 
following determinations as a result thereof: 

(1) For a concentrated animal feeding 
operation as described in 40 CFR 
122.23(b)(3) and Paragraph (a) of 
Appendix B of those regulations, does 
a discharge of pollutants occur to the 
surface waters of the state by any 
means, as a result of any rainfall event 
less severe than a 25-year, 24 hour 
event. 

(2) For a concentrated animal feeding 
operation as described in 40 CFR 
122.23(b)(3) and Paragraph (b) of 
Appendix B of those regulations; 

(A) Does a pollutant discharge occur to 
the surface waters of the state through 
a man-made ditch, flushing system, or 
similar man-made device; or 

(B) Does a pollutant discharge occur to 
the surface waters of the state which 
originate outside of and pass over, 
across, through, or otherwise come in 
contact with animals confined in the 
operation, as a result of any rainfall 
event less severe than a 25-year, 24 
hour event. 

(3) Case-by-Case Determination 

(A) For an animal feeding operation not 
otherwise falling within the definition 
provided in 40 CFR 122.23(b)(3): 

(i) Does a pollutant discharge occur 
to the state's surface waters 
through a man-made ditch, 
flushing system, or similar 
man-made device; or 

(ii) Does a pollutant discharge occur 
to the state's surface waters which 
originate outside of and pass over, 
across, through, or otherwise 
come into direct contact with 
animals confined in the operation 
as a result of any rainfall event 
less severe than a 25-year, 24 
hour event. 

(B) If the staff determines that a discharge 
occurs under either (3)(A)(i) or (3)(A) 
(ii) of this Paragraph, then such an 



animal feeding operation may be 

designated by the Director, Divisioi 

of Environmental Management, as ; 

concentrated animal feeding 

operation. In making sue! 

designation, the Director shal 

consider the following factors: 

(i) The size of the animal feeding 

operations; the amount of waste 

therefrom reaching the state's 

surface waters; 

(ii) The operation's location relative 

to the surface waters of the state; 

(iii) The means of conveyance o 

animal wastes or process waste 

waters into the surface waters o 

the state; 

(iv) The degree of slope, nature o 

vegetation, extent of rainfall, am 

other factors relative to th< 

likelihood or frequency o 

discharge of animal wastes anc 

process waste waters into the 

state's surface waters; 

(v) Other factors relative to th< 

significance of the pollutioi 

problem sought to be regulated; 

(vi) Does a discharge of pollutant 

occur which results in a violatioi 

of water quality standards, as ; 

result of any rainfall event les 

severe than a 25-year, 24 hou 

event. 

(b) Notice to Apply for Permit. If the fieli 

determination verifies that a discharge from ai 

animal feeding operation or concentrated anima 

feeding operation occurs under any of th 

conditions listed in Paragraph (a)(1) to (3) of thi 

Rule, the Director shall give written notice to th 

owner or operator of the concentrated anima 

feeding operation, that he must submit a 

application for a permit. The notice shall specif 

that if the owner or operator can permanentl 

eliminate a discharge of pollutants to the surfac 

waters of the state, by such minor changes as cai 

be affected within 60 days of the receipt of notic 

to submit a permit application (such as, but no 

limited to, diversion of outside drainage from pe 

areas, modifications to lagoons, closing ol 

drainage ditches) a permit application will not b 

required. If modifications necessary to eliminat 

permanently discharges of pollutants to surfac 

waters of the state cannot or are not complete 

within 60 days of receipt of notice, a perm 

application must be submitted. 



1057 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



c) Permit Applications. Permit applications as 

quired by 40 CFR 122.21 will be available in the 

vision of Environmental Management regional 

fices. On determination that an application 

ould be submitted, the applicant shall forward a 

mpleted application with supporting information 

quired by Rules .0105 to .0109 of this Section. 

^plications with supporting documentation are to 

mailed to the Director, Division of 

ivironmental Management, P.O. Box 

^^7- 9535 , Raleigh, North Carolina 

7644 26-0535 . On receipt of the application, a 

presentative of the Division of Environmental 

anagement will conduct an inspection to 

termine whether a permit is required. If a 

:rmit is required, the application will be 

•ocessed. If not, it will be returned without 

:tion. Those concentrated animal operations that 

in alleviate the requirement to have a permit 

rough minor modifications to facilities will be 

ven 60 days to make such modifications prior to 

-ocessing the permit application. On completion 

f required modifications to facilities, the permit 

jplication will be returned with written 

mfirmation that the concentrated animal operation 

in compliance with these Rules. 

(d) Methodology for Establishing a Potential for 
Discharge as a Result of Any Rainfall Event 

ess Severe Than a 25-year, 24 Hour Event. The 
taff site evaluation shall include soil 
haracteristics of the feedlot and of the land area 
/ing between the feedlot and the receiving stream; 
lope and other topographic characteristics of the 
sedlot and the area between the feedlot, and the 
eceiving stream; and the total drainage area. 
Jsing the results of the site evaluation, the staff 
hall use either the "rational method for 
etermination of runoff" or the "SCS method for 
letermination of runoff" to establish whether a 
lischarge occurs at rainfall events of less than the 
!4-hour, 25-year rainfall. 

(e) Impact Evaluation. Utilizing the results of 
he site evaluation and the runoff evaluation 
equired in Paragraph (d) of this Rule, the staff 
hall through mathematical modeling determine 
vhether pollutants discharged as a result of rainfall 
"unoff will cause a violation of water quality 
tandards at flows in existence during the runoff 
)eriod. 

(f) Final Determination and Fact Sheet. Upon a 
final determination that a permit is not required, 
he staff shall prepare a fact sheet which delineates 
he reasons which have been established for 
requiring the permit, the corrective actions if any 
necessary to control the discharge of pollutants. 



and an implementation schedule for completing 
such actions. If no corrective actions are required, 
the fact sheet shall specifically state that none are 
required and provide the justification for not 
requiring corrective actions. Upon completion of 
the fact sheet, the staff shall prepare an NPDES 
draft permit containing a description of needed 
corrective actions and a schedule for 
implementation and process the permit in 
accordance with Rule .0107 .0108 of this Section. 

Statutory Authority G.S. 143-213(24); 143-215; 
143-215. 1; 143-215. 3(a)(1), (4). 

.0124 RELIABILITY 

All facilities shall provide adequate reliability 
measures, which, in the opinion of the Director, 
will insure continued treatment and disinfection 
where the interruption of such treatment would 
render the waters unsafe for their best intended 
uses. The reliability measures shall include the 
following: 



(1) For new 



(2) 



(a) 



(b) 



(c) 



For new facilities with mechanically 
operated components a design capacity of 
10,000 gpd or greater , and for any 
facility designated by the Director, 
multiple (dual at a minimum) components 
such as pumps, chemical feed systems, 
aeration equipment and disinfection 
equipment: and 

At least one of the following-; — fef 
facilitie s who s e di s charge could impact 
waters classified as WS, SA, B or SB, 
and any other facility designated by the 
Director : 
dual or standby power supply on site , 
or 

approval by the Director that the 

facility: 

(i) serves a private water distribution 

system which has automatic shut-off 

at power failure and no elevated water 

storage tanks, and 

(ii) has sufficient storage capacity that no 

potential for overflow exists, and 
(iii) can tolerate septic wastewater due to 
prolonged detention, ef and 
would have de minimus impacts as a 
result of power failure^ or 
where the waters that would be 
impacted by a power failure are 
classified as C Waters, the applicant 
may be allowed to show a history of 
power reliability that would 
demonstrate that an alternative power 



(iv) 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1058 



PROPOSED RULES 



(3) 



,4) 



(5j 



m 



m 



18} 



source would not be needed or 
demonstrate other measures which 
provide comparable assurances that 
surface waters will not be impacted 
during power failures; 
For new mechanical facilities whose 
di s charge could impact waters classified 
as B or SB , the applicants treatment plant 
must contain parallel units for 
components in the liquid line (screening, 
primary sedimentation, biological 
treatment units, chemical and physical 
treatment units, clarifiers, disinfection 
chlorine contact chambers and effluent 
filters), unless the applicant can 
demonstrate to the satisfaction of the 
Director that this requirement is 
unwarranted for a particular case; and 
For mechanical facilities with a design 
capacity equal to or greater than 5.0 
mgd, continuous operation, twenty-four 
(24) hours, seven (7) days per week, with 
each shift supervised by at least one 
operator with certification of no less than 
one grade below the rated facility 
classification shall be provided; and 
For all facilities requiring an operator by 
the Water Pollution Control System 
Operator Certification Commission, 



adequate lab facilities shall be provided at 
the wastewater treatment facility to 
provide for routine process monitoring; 
and 

For facilities permitted under this 
Section, the permittee must designate an 
Operator in Responsible Charge and a 
back-up operator as required by the 
Water Pollution Control System 
Operators Certification Commission as 
established in 15A NCAC 8A .0202; and 
In order to insure the proper operation 
and maintenance of facilities permitted 
under this Section, the Operator in 
Responsible Charge, or back-up operator 
when appropriate, must operate and visit 
the facility as required by the Water 
Pollution Control System Operators 
Certification Commission as established 
in 15A NCAC 8A .0202; and 
^Compliance with other reliability 
measures that, in the opinion of the 
Director, are necessary in a particular 
case. 



Statutory Authority G.S. 143-214. 1; 1 43-21 5. 1(b); 



143-215. 3(a)(1). 

.0127 GENERAL PERMITS 

(a) In accordance with the provisions of G.S. 
143.215.1 (b)(3) and (4), general permits may bs 
developed by the Division and issued by the 
Director for categories of activities shown in thi: 
Rule. All those dischargers in the State tha 
received a "Certificate of Coverage" for that 
category from the Division will be deemed coverec 
under that general permit. Each of the genera 
permits will be issued individually under G.S 
143-215.1, using all procedural requirements 
specified for individual NPDES or state permits 
including application and public notice. Each 
general permit must be approved by the U.S 
EPA, before it becomes effective. Dischargers 
covered under general permits, developed ii 
accordance with this Rule, will be subject to th< 
same effluent standards and limits, managemen 
practices, enforcement authorities, and rights anc 
privileges as specified in the general permit 
Procedural requirements for application and permit 
approval, unless specifically designated 
applicable to individuals proposed to be coverec 
under the general permits, apply only to th 
issuance of the general permits. After issuance ol 
the general permit by the Director and approval b) 
EPA, dischargers in the applicable categories may 
request coverage under the general permit, and thi 
Director or his designee shall grant appropriafc 
certification. General permits may be written tc 
regulate categories of other discharges that all 
Involve the same or substantially similar 
operations; Discharge the same type of waste Have 



similar discharge characteristics ; Require the sam< 
effluent limitations or operating conditions 
Require the same or similar monitoring; and In the 
opinion of the Director are more appropriately 
controlled by a general permit such as: 



(1) 

(2) 
(3) 

(4) 

(5) 
(6) 



(7) 



(8) 



once-through non-contact coolin 

waters with no biocidal additives; 

mine dewatering facilities; 

water filtration facilities; 

swimming pool filter backwash 

facilities; 

seafood packing facilities; 

oil terminal storage facilities 



di s charging to water supply (WS HI' 

waters ; 

tourist gem mines oil terminal storage 



facilities — discharging to water s othei 



than those classified as water supply 



waters ; 

sand dredges; 



1059 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



(9) trout farms; 

(10) aquifer restoration; 

(11) stormwater discharges; 

(12) other discharges that meet the criteria 
in Paragraph (a) of this Rule. 

(b) Coverage under g General permits will only 
; granted for discharge into waters classified 
ther WS or SA following review and written 
jproval by the Division of Environmental Health, 
epartment of Environment, Health, and Natural 
esources. 

(c) Coverage under general permits will only be 



ranted where the individual requesting coverage 

irificB that the management practices required as 

ndition a — in each — g e neral — permit — have — beee 



stalled. 



(d) Theac general permits apply only to cooling 
flteft — and — mine — dewatcring — discharges — with 



olumeo of less than — 10 MGD and to other 



19 

ran- 



charges listed in this Rule with volumes of less 



MGD. 



(c) (e)No provision in any general permit issues 
nder this Rule shall be interpreted as allowing the 
ermittee to violate state water quality standards or 
ther applicable environmental standards. 

(d) ff-)For one of these general permits to apply 
• a facility, a Notice of Intent to be covered by 
le general permit must be given using short forms 
i through N described in Rule .0105(a) of this 
lection and, as appropriate, following the 
pplication procedures specified in Rules .0105 
nd .0106 of this Section. If all requirements are 
let, coverage under the general permit may be 
ranted. If all requirements are not met, a long 
orm application and full application review 
Jrocedure will be required. 

(e) (g)General permits will be effective for a 
erm of five years at the end of which the Division 
nay renew them. All public notice requirements 
hall be satisfied prior to renewal of general 
ermits. Dischargers covered by general permits 
leed not submit new Notices of Intent or renewal 
equests unless so directed by the Division. If the 
Division chooses not to renew a general permit, all 
acilities covered under that general permit shall be 
lotified to submit applications for individual 
>ermits. 

(fj (fr)All previous state water quality permits 
ssued to a facility which can be covered by a 
general permit, whether for construction or 
speration, are revoked upon request of the 
permittee, termination of the individual permit and 
ssuance of the Certification of Coverage. 

(g) (^Anyone engaged in activities covered by 
the general permit rules but not permitted in 



accordance with this Section will be considered in 
violation in G.S. 143-215.1. 

(h) (j)Any individual covered or considering 
coverage under a general permit may choose to 
pursue an individual permit for any facility 
covered by this Rule. 

(i) $e)The Director may require any person, 
otherwise eligible for coverage under a general 
permit, to apply for an individual NPDES permit 
by notifying that person that an application is 
required. Notification shall consist of a written 
description of the reason(s) for the decision, 
appropriate permit application forms and 
application instructions, a statement establishing 
the required date for submission of the application, 
and a statement informing the person that coverage 
by the general permit shall automatically terminate 
upon issuance of the individual permit. Reasons 
for requiring application for an individual permit 
may be: 

(1) the discharge is a significant contributor 
of pollutants; 

(2) conditions at the permitted site change, 
altering the constituents or 
characteristics of the discharge such 
that the discharge no longer qualifies 
for coverage under a general permit; 

(3) (4)noncompliance with the general 
permit; 

(4) (^noncompliance with Division Rules; 



or 



(5) 



a change has occurred in the availability 
of demonstrated technology or practices 
for the control or abatement of 
pollutants applicable to the point 
source; 

effluent limitations are promulgated for 
the point sources covered by the 
general permit; 

a water quality management plan 
containing the requirements applicable 
to such point sources is approved after 
the issuance of the general permit; 
the Director determines at his own 
discretion that an individual permit is 
required; or 

0)a determination that the water of the 

stream receiving the discharge is not 

meeting applicable water quality 

standards. 

01 ^)Any interested person may petition the 

Director to take an action under Paragraph (fe)rij 

of this Rule to require an individual NPDES 

permit. 

(k) (m-)General permits may be modified. 



£6) 



ill 



i§l 



(21 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1060 



PROPOSED RULES 



terminated, or revoked and reissued in accordance 
with the authority and requirements of Rules .0112 
and .01 14 of this Section. 

Statutory Authority G.S. 143-215(1); 
143-215(3)(a)(l). 

.0138 AUTHORIZATION TO CONSTRUCT 
PERMITS 

(a) Required. After an NPDES permit has been 
issued by the Division of Environmental 
Management in accordance with this Section, 
construction of wastewater treatment facilities or 
additions thereto shall not begin until final plans 
and specifications have been submitted to and 
written approval an Authorization to Construct has 
been issued to the permittee by the Division of 
Environmental Management. If an Authorization 
to Construct has not been applied for in 
accordance with the requirements of the NPDES 
permit during the term of the permit, the permit 
will be considered void upon expiration and future 
actions will be considered as a new application. 

(b) Application. 

(1) Application for approval of plans and 
specification s Authorizations to 
Construct must be made in triplicate on 
official forms completely filled out, 
where applicable, and fully executed. 
The signature of the consulting engineer 
or other agent will be accepted on the 
application only if accompanied by a 
letter of authorization from the 
permittee . 

(2) Required sets of plans and 
specifications: 

(A) regular projects -- three five sets of 
detailed plans and specifications, 

(B) federal and state grants /loan projects 
-- four sets of detailed plans and 
specifications plus federal assurances 
required by appropriate federal 
agency; 

(3) Specifications describing all materials to 
be used, methods of construction and 
means for assuring the quality and 
integrity of the finished project. 

(4) When required, a statement submitted 
that the wastewater treatment facility 
involved will be properly disconnected 
and the wastewater discharged into an 
adequate district or municipal system 
when it becomes available. 

(5) If a Sedimentation and Erosion Control 
Plan is required by the Division of 



Land Resources or their 
documentation shall 
verifying that 
developed and 



(6) 



(7) 



i§l 



(A) 



IB] 



be provide* 



the applicant has 
submitted to thj 
governing agency the required Plan, h 
more than one contiguous acre of lai i t 



-to — be — uncovered — by- 



-a — projec t- 



documentation — s hould — be — oupplice 
verifying — that — the — applicant — ba< 
completed an erosion control plan. 
A 1 10 volt power source and a potable 
water supply,, equipped with backflov* 



prevention, must be available at the 
treatment system to allow foi 
maintenance, clean-up and sampling 
In cases where this is not reasonable oi 
economically achievable, an exceptior 
may be granted by the Water Quality 
Section Chief. 
For those wastewater disposal facilities 
which have the potential to cause s 
contravention of groundwater standards 
hydrogeologic information must be 
provided as specified in Rule 2H .020: 
of this Subchapter. 

A residuals management plan must b 
submitted for all wastewater treatment 
systems that generate residuals anc 
must include the following: 
A detailed explanation as to how th 
residuals will be stabilized. I 
addition if the residuals are generate* 
from a system treating sewage, the 
explanation must show that thj 
stabilization process meets thj 
Environmental Protection Agency's 



criteria for a Process to Significantly 



Reduce Pathogens (PSRP) as definec 



in 40 CFR Part 257 Appendix If 
hereby adopted by reference including 



any subsequent amendments anc 
editions. This material is available 



for inspection at the Department pj 
Environment, Health, and Natural 



Resources, Division of Environmental 



Management, 512 N. Salisbury Street, 



Raleigh, North Carolina. Copies may 



be obtained from the Superintendent 
of Documents, U.S. Government 
Printing Office, Washington D.C 



20402-9325 at a cost of thirty six 
dollars ($36.00). 
An evaluation of the residual storage 
requirements for the treatment 
facility. A minimum of thirty (30) 



1061 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



PROPOSED RULES 



m 



days storage will be required on all 
facilities. Storage shall be calculated 
based upon average sludge production 
rate and shall be units that are 
separate from the treatment system, 
i.e., not the clarifiers, aeration basins 
nor sludge digestion facilities. 
Additional storage may be required 
based upon the method of final 
disposal/utilization. 
(C) No authorization to construct will be 
issued unless the application package 
includes a commitment from a DEM 
approved residual disposal/utilization 
site for the acceptance of the residual 
and which demonstrates that the DEM 
approved site has adequate capacity to 
accept the residuals. 
A construction sequence plan must be 
submitted with applications for an 
Authorization to Construct for 
modification of existing wastewater 
treatment facilities. The plan must 
outline the construction 



ensure continuous 



sequence to 
operation of the 



treatment system, 
(c) Fees for Authorization to Construct Permits 

(1) For every application for a new or 
modified construction permit, for 
facilities with a design flow of greater 
than 100,000 gallons per day, a 
nonrefundable application processing 
fee of four hundred dollars ($400.00) 
must be submitted. 

(2) For every application for a new or 
modified construction permit, for 
facilities with a design flow of equal to 
or less than 100,000 gallons per day but 
greater than 1,000 gallons per day, a 
nonrefundable application processing 
fee of two hundred dollars ($200.00) 
must be submitted. 

(3) For every application for a new or 
modified construction permit, for 
facilities with a design flow of equal to 
or less than 1,000 gallons per day, a 
nonrefundable application processing 
fee of one hundred dollars ($100.00) 
must be submitted. 



Statutory Authority G.S. 143-215. 1(c)(1). 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend I rules cited as 
19A NCAC 2E .0219 and .0221. 

1 he proposed effective date of this action is 
December 1, 1992. 

Instructions on How to Demand a Public Hearing: 
A demand for a public hearing must be made in 
writing and mailed to N. C. Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611, Attn: Emily Lee. Tlie demand must be 
received within 15 days of this Notice. 

Reason for Proposed Action: 19A NCAC 2E 
.0219 - To allow DOT flexibility in its logo sign 
program to accommodate the traveling public's 
need to know of services on interstates /freeways by 
increasing maximum location distance of service 
from 3 to 6 miles when no qualifying services exist 
within 3 miles and by allowing bed and breakfast 
establishments with fewer than 10 units to 
participate if sign space available. 19A NCAC 
2E .0221 - To exclude "GAS", "FOOD", and 
"LODGING" services located more than 3 miles 
from the interchange from being able to avoid 
being removed from a logo sign by a qualifying 
business that is located within 3 miles of the 
interchange. 

KsOtnment Procedures: Any interested person may 
submit written continents on the proposed rule by 
mailing the comments to: N. C. Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611 , Attn: Emily Lee within 30 days after the 
proposed rule is published or until the date of any 
public hearing held on the proposed rule, 
whichever is longer. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2E - MISCELLANEOUS 
OPERATIONS 

SECTION .0200 - OUTDOOR 
ADVERTISING 

.0219 ELIGIBILITY FOR PROGRAM 

Business signs may be permitted, provided said 
businesses comply with the following criteria and 
have a public telephone: 






7:10 NORTH CAROLINA REGISTER August 14, 1992 



1062 



PROPOSED RULES 



( 1 ) The individual business installation whose 
name, symbol or trademark appears on a 
business sign shall give written assurance 
of the business's conformity with all 
applicable laws concerning the provision 
of public accommodations without regard 
to race, religion, color, sex, or national 
origin. An individual business may apply 
for additional sign positions on a sign 
panel provided no qualified applicant is 
denied space on the sign panel. An 
individual business, under construction, 
may participate in the program by giving 
written assurance of the business's 
conformity with all applicable laws and 
requirements for that type of service, by 
a specified date of opening to be within 
one year of the date of application. 

(2) The maximum distance that a "GAS" 
"FOOD", or "LODGING" service can be 
located from the Interstate, or other fully 
controlled access highway shall not 
exceed three miles in either direction via 
an all-weather road. Where no 
qualifying services exist within three 
miles, the maximum distance may be 
increased to six miles, provided the total 
travel distance to the business and return 
to the interchange does not exceed twelve 
miles, with The maximum distance being 
ten miles for a "CAMPING" service shall 
not exceed ten miles in either direction 
via an all-weather road. Said distances 
shall be measured from the point on the 
interchange crossroad, coincident with 
the centerline of the Interstate or other 
fully controlled access highway route 
median, along the roadways to the 
respective motorist service. The point to 
be measured to for each business is a 
point on the roadway that is 
perpendicular to the corner of the nearest 
wall of the business to the interchange. 
The wall to be measured to shall be that 
of the main building or office. Walls of 
sheds (concession stands, storage 
buildings, separate restrooms, etc.) 
whether or not attached to the main 
building are not to be used for the 
purposes of measuring. If the office 
(main building) of a business is located 
more than .2 mile from a public road on 
a private road or drive, the distance to 
the office along the said drive/road shall 
be included in the overall distance 



(3) 

(a) 
(b) 
(c) 
(d) 

(e) 

(4) 
(a) 

(b) 



(c) 
(d) 

(5) 

(a) 

(b) 



(c) 
(d) 



measured to determine whether or not thi 
business qualifies for business signing 
The office shall be presumed to be at th< 
place where the services are provided. 
"GAS" and associated services. Criteri; 
for erection of a business sign on a pane 
shall include: 
appropriate licensing as required b' 
law; 

vehicle services for fuel, motor oil, tir 
repair (by an employee) and water; 
restroom facilities and drinking wate 
suitable for public use; 
an on-premise attendant to collec 
monies, make change, and make o 
arrange for tire repairs; 
year-round operation at least 1( 
continuous hours per day, seven days 
week. 
"FOOD". Criteria for erection of 
business sign on a panel shall include: 
appropriate licensing as required b; 
law, and a permit to operate by th 
health department; 

year-round operation at least 1! 
continuous hours per day to serve thre 
meals a day (sandwich type entrees ma 
be considered a meal) (breakfast, lunch 
supper), seven days a week; 
indoor seating for at least 20 persons; 
public restroom facilities. 
"LODGING". Criteria for erection of 
business sign on a panel shall include: 
appropriate licensing as required b 
law, and a permit to operate by th 
health department; 
adequate sleeping accommodation 
consisting of a minimum of 10 unit 
each, including bathroom and sleepin 
roonij except a Lodging busines 
operating as a "Bed and Breakfast 
establishment with less than 10 unil 
'Bed and Breakfast 



may participate. 
businesses shall 



be identified on th 
standard messag 



Logo signs by a 
specified by the Department. "Bed an 
Breakfast" businesses shall only b 
allowed to participate in the program 
the maximum number of qualifie 



Lodging businesses do not reque 



participation in the program and occup 



spaces on the Logo sign panels ; 
off-street vehicle parking for 
lodging room for rent; 
year-round operation. 



eac 



1063 



7:10 NORTH CAROLINA REGISTER August 14, 199 



PROPOSED RULES 



(6) "CAMPING". Criteria for erection of a 
business sign on a panel shall include: 

(a) appropriate licensing as required by 
law, including meeting all state and 
county health and sanitation codes and 
having adequate water and sewer 
systems which have been duly inspected 
and approved by the local health 
authority (the operator shall present 
evidence of such inspection and 
approval); 

(b) at least 10 campsites with 
accommodations for all types of 
travel-trailers, tents and camping 
vehicles; 

(c) adequate parking accommodations; 

(d) ontinuous operation, seven days a week 
during business season; 

(e) removal or masking of said business 
sign by the department during off 
seasons, if operated on a seasonal basis. 

uthority G.S. 136-89.56; 136-137; 136-139; 
43B-346; 143B-348; 143B-350(f);23 C.F.R. 750, 
ubpartA; 23 U.S.C. 131(f). 



9221 FEES 

(a) The fee for an initial installation is two 
undred fifty dollars ($250.00) per business sign, 
'ontracts are renewed annually every November 

The annual fee is two hundred fifty dollars 
$250.00) per business sign. The initial fee shall 
over a one-year period beginning with placement 
nd acceptance of the "business sign" or "logo 
ign" by the department. The fee for that period 
f time between the first anniversary of placement 
nd acceptance and the first annual renewal date 
hall be the prorated portion of the annual fee. 
Vny business which meets the criteria to 
jarticipate in the program may pay the cost of 
nitial installation of a complete logo sign panel 
ubject to a credit to be determined by the 
lepartment at the time it receives any fee from a 
msiness which later qualifies and elects to 
)articipate in the program on the subject panel. 
The aforesaid payment of the cost of initial 
nstallation of a complete logo sign panel in no 
vay relieves the participating business from the 
obligation of its payment of the annual 
Maintenance fee per business sign. 

(b) Fees are payable by check or money order 
ind due in advance of the period or service 

overed by said fee. Failure to pay a charge when 
iue is ground for removal of the sign and 
termination of the contract. 



(d) The department shall not be responsible for 
damages to business signs caused by acts of 
vandalism, accidents, natural causes (including 
natural deterioration), etc., requiring repair or 
replacement of business sign(s). Applicants in 
such event shall provide a new or renovated 
business sign together with payment of a 
twenty-five dollar ($25.00) service charge per 
business sign to the department to replace such 
damaged business sign(s). 

(e) Any participating business^ other than 
"GAS", "FOOD", or "LODGING" service located 
more than three miles from the Interstate, or other 
fully controlled access highway, which did not 
previously participate in the initial cost of the 
installation of logo sign panels, may by making 
application to the department and paying the 
balance of construction costs not previously paid, 
avoid being removed from this program by 
applications of other businesses deemed closer to 
the interchange. Any participating applicant may 
pay the balance of construction costs for only one 
logo sign on any sign panel. This payment of the 
balance of construction costs in no way relieves 
the participating business from the obligation of its 
payment of the annual maintenance fee per 
business sign. 

(f) Any business^ other than "GAS", "FOOD", 
or "LODGING" service located more than three 
miles from the Interstate, or other fully controlled 
access highway, which meets the criteria to 
participate in the program, by making application 
to the department and prepaying all construction 
cost fees for addition to existing logo signs, may 
avoid being removed from this program by 
applications of other businesses deemed to be 
closer to the interchange. Any business applicant 
may prepay the balance of construction costs for 
only one logo sign on any sign panel. This 
prepayment of all construction cost fees in no way 
relieves the participating business from the 
obligation of its payment of the annual 
maintenance fee per business sign. 

(g) Any participating business located more than 
three miles from the Interstate, or other fully 
controlled access highway, that prepaid all 
construction costs for the initial installation of the 
logo background sign panels, shall be allowed a 
reimbursement if dislocated by another qualifying, 
participating business. This reimbursement 
amount will be determined by the Department, 
based on the life-cycle costs of the logo signs and 
the in-service time the business logo was 
displayed. 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1064 



PROPOSED RULES 



Authority G.S. 136-89.56; 136-137; 136-139; 
143B-346; 143B-348; 143B-350(f); 23 C.F.R. 750, 
Subpart A; 23 U.S.C. 131(f). 



1065 7:10 NORTH CAROLINA REGISTER August 14, 1992 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 143B- 
30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



GRICULTURE 

tructural Pest Control Division 

NCAC 34 .0406 - Spill Control 

NCAC 34 .0603 - Waivers 

NCAC 34 .0902 - Financial Responsibility 

CONOMIC AND COMMUNITY DEVELOPMENT 

lBC Commission 

NCAC 2R .0702 - Disciplinary Action of Employee 

Rule Returned to Agency 
NCAC 2R .1205 - Closing of Store 

Agency Repealed Rule 
NCAC 25 .0503 - Pre-Orders 

Rule Returned to Agency 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

oastal Management 

5 A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

)epartmental Rules 

5 A NCAC 1J .0204 - Loans from Emergency Revolving Loan Accounts 

5A NCAC U .0302 - General Provisions 

5A NCAC U .0701 - Public Necessity: Health: Safety and Welfare 

Environmental Health 

5A NCAC 18A .3101 - Definitions 
Agency Revised Rule 

Environmental Management 

<5A NCAC 20 .0302 - Self Insurance 

lealth: Epidemiology 

15A NCAC 19H .0601 - Birth Certificates 
Agency Revised Rule 

Soil and Water Conservation 



RRC Objection 07/16/92 
RRC Objection 07/16/92 
RRC Objection 07/16/92 



RRC Objection 05/21/92 
06/18/92 
RRC Objection 05/21/92 
Obj. Removed 06/18/92 
RRC Objection 05/21/92 
06/18/92 



RRC Objection 05/21/92 
06/18/92 



RRC Objection 06/18/92 
RRC Objection 06/18/92 
RRC Objection 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1066 



RRC OBJECTIONS 






15A NCAC 6E .0007 - Cost Share Agreement 


RRC Objection 


06/18/92 


Agency Revised Rule 


Obj. Removed 


06/18/91 


Wildlife Resources and Water Safety 






15 A NCAC WE .0004 - Use of Areas Regulated 


RRC Objection 


06/18/91 


HUMAN RESOURCES 






Aging 






10 NCAC 22R .0301 - Definitions 


RRC Objection 


07/16/91 


Agency Revised Rule 


RRC Objection 


07/16/91 


Day Care Rules 






10 NCAC 46D .0305 - Administration of Program 


RRC Objection 


06/18/91 


Agency Revised Rule 


Obj. Removed 


06/18/91 


10 NCAC 46D .0306 - Records 


RRC Objection 


06/18/91 


Agency Revised Rule 


Obj. Removed 


06/18/91 


Mental Health: General 






10 NCAC 14M .0704 - Program Director 


RRC Objection 


05/21/91 


Agency Revised Rule 


Obj. Removed 


06/18/91 


INSURANCE 






Departmental Rules 






11 NCAC 1 .0106 - Organization of the Department 


RRC Objection 


06/18/91 


Agency Revised Rule 


Obj. Removed 


06/18/91 


Multiple Employer Welfare Arrangements 






11 NCAC 18 .0019 - Description of Forms 


RRC Objection 


06/18/91 


Seniors' Health Insurance Information Program 






11 NCAC 17 .0005 - SH1IP Inquiries to Insurers and Agents 


RRC Objection 


06/18/91 


LICENSING BOARDS AND COMMISSIONS 






Dietetics/Nutrition 






21 NCAC 17 .0014 - Code of Ethics for Professional Practice/Conduct 


RRC Objection 


05/21/92 


Agency Revised Rule 


RRC Objection 


05/21/92 


Agency Revised Rule 


Obj. Removed 


06/18/92 


STATE PERSONNEL 






Office of State Personnel 






25 NCAC IE .1301 - Purpose 


RRC Objection 


07/16/92 


25 NCAC IE .1302 - Policy 


RRC Objection 


07/16/92 


1067 7:10 NORTH CAROLINA REGISTER August 


14, 1992 



RRC OBJECTIONS 



NCAC IE . 1303 - Administration RRC Objection 07/16/92 

NCAC IE . 1304 - Qualifying to Participate in Voluntary Shared Leave Prgm RRC Objection 07/16/92 

NCAC IE . 1305 - Donor Guidelines RRC Objection 07/16/92 

NCAC IE . 1306 - Leave Accounting Procedures RRC Objection 07/16/92 

NCAC 1H .0603 - Special Recruiting Programs RRC Objection 05/21/92 

Agency Repealed Rule Obj. Removed 06/18/92 

NCA C 11 .1702 - Employment of Relatives RRC Objection 07/1 6/92 

NCAC 11 . 1903 - Applicant Information and Application RRC Objection 07/16/92 

NCAC 11 .2401 - System Portion I: Recruitment, Selection, & Advancement RRC Objection 07/16/92 

NCAC 11 .2402 - System Portion 11: Classification/Compensation RRC Objection 07/16/92 

NCAC 11 .2403 - System Portion III: Training RRC Objection 07/16/92 

NCAC 11 .2404 - System Portion IV: Employee Relations RRC Objection 07/16/92 

NCAC 11 .2405 - System Portion V: Equal Emp Oppty/Affirmative Action RRC Objection 07/16/92 

NCAC 11 .2406 - System Portion VI: Political Activity RRC Objection 07/16/92 

NCAC U . 1005 - Eligibility for Services RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 06/18/92 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1068 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portion 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Caroline 
Department of Community Colleges and The North Carolina Department of Administration, Respondent anc 
Die University of Southern California, Intervenor-Respondent (92 DOA 0666). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - fflV 

Brenda B. Becton, Administrative Lav.' Judge with the Office of Administrative Hearings, declared Rule 15/ 
NCAC 1 9A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle) 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Departmen 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, a 
Chief Communicable Disease Control Section of the North Carolina Department of Environment, Health, am 
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Caroline 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



1069 7:10 NORTH CAROLINA REGISTER August 14, 1992 



CONTESTED CASE DECISIONS 



This Section contains the fit 1 1 text of some of the more significant Administrative Law Judge decisions 

long with an index to all recent contested cases decisions which are filed under North Carolina 's 

Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 

upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



BC 
DA 
ME 
MS 
OG 
ON 
00 
FA 
OM 



[PS 
SE 
•AG 
ICC 
)CR 
)CS 
)HR 
)0A 
)0J 
)0L 
)SA 



Alcoholic Beverage Control Commission DST 

Board of Dental Examiners EDC 

Board of Medical Examiners EHR 
Board of Mortuary Science 

Board of Geologists ESC 

Board of Nursing HAF 

Board of Opticians HRC 

Commission for Auctioneers IND 

Department of Economic and Community INS 

Development LBC 
Department of Crime Control and Public Safety MLK 

Child Support Enforcement NHA 

Department of Agriculture OAH 

Department of Community Colleges OSP 

Department of Cultural Resources PHC 
Distribution Child Support 

Department of Human Resources POD 

Department of Administration SOS 

Department of Justice SPA 
Department of Labor 

Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 



CASE 
NUMBER 



ALJ 



FILED 
DATE 



Anne R. Gwaltney, Milton H. Askew, Jr. 
and Anna L. Askew 



v. 



89 DHR 0699 



Reilly 



07/17/92 



EHR and Pamlico County Health Department 



CSX Transportation, Inc. 

v. 

Department of Environment, Health, & Natural Resources 



90 EHR 0628 



Reilly 



07/17/92 



Bruce Keeter 

v. 

Beaufort County Health Department 



90 EHR 0666 



Morgan 



07/28/92 



JHY Concord, Inc. 

v. 
Department of Labor 



90 DOL 1421 



Morgan 



07/28/92 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1070 



CONTESTED CASE DECISIONS 








CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Lick Fork Hills. Inc.. Marion Bagwell. President 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0023 


Morgan 


07/28/92 


Albert J. Johnson 

v. 

N.C. Victims Compensation Commission 


91 CPS 0038 


Morgan 


07/28/92 


Century Care of Laurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0257 


West 


06/30/92 


Wade Charles Brown, Jr. 

v. 

N.C. Crime Victims Compensation Commission 


91 CPS 0345 


Chess 


07/08/92 


Charles E. Roe 

v. 

Department of Environment, Health, & Natural Resources 


91 OSP 0520 


Nesnow 


07/23/92 


Lisa M. Reichstein 
v. 

Office of Student Financial Aid, East Carolina University 


91 OSP 0662 


Nesnow 


06/24/92 


Alcoholic Beverage Control Commission 

v. 

Daniels Investments, Inc.. t/a Leather & Lace - East 

4205 Monroe Road. Charlotte, N.C. 28205 


91 ABC 0799 


Mann 


07/14/92 


ACT-UP Triangle (AIDS Coalition to Unleash Power 

Triangle, Steven Harris, and John Doe 

v. 

Commission for Health Services of the State of N.C Ron 

Levine, as Assistant Secretary of Health and State Health 

Director for EHR of the State of N.C, William Cobey, as 

Secretary of EHR of the State of N.C, Dr. Rebecca 

Meriwether, as Chief, Communicable Disease Control 

Section of the N.C. EHR. Wayne Bobbin, Jr.. as Chief of 

the HIV/STD Control Branch of the N.C.EHR 


91 EHR 0818 


Becton 


07/08/92 


Jane C CTMalley, Melvin L. Cartwright 
v. 
EHR and District Health Department Pasquotank- 
Perquimans-Camden-Chowan 


91 EHR 0838 


Becton 


07/02/92 


Grotgen Nursing Home. Inc.. Britthaven. Inc. 

v. 

Certificate of Need Section. Div of Facility Svcs, DHR 


91 DHR 0964 
91 DHR 0966 


Nesnow 


07/06/92 


Ramona S. Smith. R.N. 

v. 

N.C. TeachersVSt Emps' Comp Major Medical Plan 


91 DST 0984 


Chess 


06/18/92 




1071 7:10 NORTH CAi 


ROLINA REGIS 


TER Augu 


st 14, 199. 



CONTESTED CASE DECISIONS 








CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Walter McGlone 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1030 


Morrison 


07/13/92 


William Oscar Smith 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1042 


Gray 


07/24/92 


William Watson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1047 


Becton 


07/08/92 


Catawba Memorial Hospital 

v. 

DHR, Div of Facility Svcs, Certificate of Need Section 

and 
Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

v. 
DHR, Div of Facility Svcs, Certificate of Need Section 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Catawba Memorial Hospital 


91 DHR 1061 
91 DHR 1087 


Reilly 


07/13/92 


Wade A. Burgess 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1114 


Gray 


07/01/92 


Harry L. King 

v. 

Department of Transportation 


91 OSP 1162 


Morgan 


07/13/92 


Gilbert Lockhart 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1178 


Morrison 


07/30/92 


Isaac H. Galloway 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1190 


Reilly 


06/30/92 


Russell A. Barclift 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1207 

92 CSE 0275 


Reilly 


06/30/92 


Herman Edward Main II 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1225 


Nesnow 


07/07/92 


Albert Louis Stoner III 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1244 


Gray 


07/01/92 




7:10 NORTH CAROLINA REGISTER August 14, i 


1992 




1072 



CONTESTED CASE DECISIONS 








CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


James E. Greene 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1245 


Nesnow 


07/14/92 


Joseph W. Harris 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1247 


Morgan 


07/28/92 


Rodney Powell 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1257 


Morgan 


07/29/92 


Floyd L. Rountree 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1275 


Morgan 


07/22/92 


City-Wide Asphalt Paving, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1360 


Chess 


07/01/92 


Alcoholic Beverage Control Commission 

v. 

Tre Three, Inc., T/A Crackers, 

Airport Rd., Rockingham, NC 28379 


91 ABC 1372 


Chess 


07/07/92 


Alcoholic Beverage Control Commission 

v. 

Rode Enterprises, Inc., T/A Jordan Dam Mini Mart 


91 ABC 1388 


Gray 


07/30/92 


Donald R. Allison 

v. 

DHR, Caswell Center 


91 OSP 1427 


Reilly 


06/30/92 


Lavern Fesperman 

v. 

Mecklenburg County 


92 OSP 0030 


Chess 


07/17/92 


Ronnie Lamont Donaldson 

v. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0092 


Reilly 


07/27/92 


Peggy N. Barber 

v. 

The University of North Carolina at Chapel Hill 


92 OSP 0120 


Reilly 


07/13/92 


Alcoholic Beverage Control Commission 

v. 

John Wade Lewis, t/a Tasty Grill 


92 ABC 0145 


Nesnow 


07/15/92 


Licensing Board for General Contractors 

v. 

Wright's Construction, Inc. (Lie. No. 23065) 


92 LBC 0172 


Gray 


07/31/92 


Herbert Hines Jr., H & H 

v. 
Alcoholic Beverage Control Commission 


92 ABC 0189 


Becton 


07/22/92 




1073 7:10 NORTH CAi 


ROLINA REGIS 


TER Augu 


st 14, 1992 





CONTESTED CASE DECISIONS 












CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 




Town of Denton 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0241 


Reilly 


07/30/92 




Alcoholic Beverage Control Commission 

v. 

Byrum's of Park Road, Inc., T/A Byrum's Restaurant 


92 ABC 0252 


Gray 


07/30/92 




Alcoholic Beverage Control Commission 

v. 
Leo's Delicatessen #2, Inc., T/A Leo's #2 


92 ABC 0255 


Gray 


07/30/92 




Clifton R. Johnson 

v. 

O'Berry Center, Department of Human Resources 


92 OSP 0381 


West 


07/08/92 




Southeastern Machine & Tool Company, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0386 


Becton 


07/20/92 




Northview Mobile Home Park 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0507 


Reilly 


07/13/92 




Alice Hunt Davis 

v. 

Department of Human Resources 


92 OSP 0526 


West 


07/16/92 




John W. Surles 

v. 

N.C. Crime Victims Compensation Commission 


92 CPS 0595 


Reilly 


07/13/92 




Stauffer Information Systems 

v. 

Department of Community Colleges and the N.C. 

Department of Administration 

and 

The University of Southern California 


92 DOA 0666 


West 


07/08/92 




L. Stan Bailey 

v. 

Chancellor Moran and UNC-Greensboro 


92 OSP 0679 


West 


07/10/92 




Arnold McCloud T/A Club Castle 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0681 


Morrison 


07/25/92 




Joyce Faircloth, T/A Showcase Lounge 

v. 
Alcoholic Beverage Control Commission 


92 ABC 0713 


Morrison 


07/25/92 








7:10 NORTH CAROLINA REGISTER August 14, 1 


992 




1074 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



CHARLES E. ROE, 



IN THE OFFICE OF 
ADNHNISTRATTVE HEARINGS 
91 OSP 0520 



Petitioner 



\s. 



RECOMMENDED DECISION 



N. C. DEPARTMENT OF ENVUtONMENT, 
HEALTH AND NATURAL RESOURCES, 

Respondent 



The above-captioned matter was heard before Dolores O. Nesnow, Administrative Law Judge, 01 
November 19. 20. 21. and 25. 1991. in Raleigh. North Carolina. 



APPEARANCES 



For Petitioner: 



For Respondent: 



Reagan Weaver, Esq. 
Weaver & McBennett 
P.O. Box 25096 
Raleigh, N. C. 27611 
ATTORNEY FOR PETITIONER 

Edwin L. Gavin, II 
Associate Attorney General 
N. C. Department of Justice 
P.O. Box 629 

Raleigh, N. C. 27602-0629 
ATTORNEY FOR RESPONDENT 



ISSUES 

1 . Was Petitioner's conduct unacceptable personal conduct constituting just cause for dismissal? 

2. Did Respondent follow proper procedure in terminating Petitioner's employment? 

3. Did Respondent violate Petitioner's right to freedom of speech? 

STATUTE IN ISSUE 

N. C. Gen. Stat. 126-35 

EXHIBITS 



For Petitioner: 



P#l, 3, 4, 5, 7, 8, 9, 11. 12. 14,15, 16, 18, 19, 20, 21, 22 and 23. 



For Respondent: R#l, 2, 6. 7. 8, 9. 11, 12, 13. 14,15, 16, 17, 18, 19, 20, 20A, 21,24, 25, 25A 
27. 28 29. 30, 35, 36, and 38. 



1075 



7:10 NORTH CAROLINA REGISTER August 14, 199 



CONTESTED CASE DECISIONS 



Based upon careful consideration of the testimony and evidence presented at the hearing, the 
cuments and exhibits received into evidence, and the entire record in this proceeding, the undersigned 
ikes the following: 

FINDINGS OF FACT 

1 . Petitioner was a full-time employee of the North Carolina Department of Environment, Health 
d Natural Resources (EHNR) for 14 years up to his dismissal for unacceptable personal conduct on March 

1992. 

2. Petitioner was a permanent State employee and was subject to the provisions of the State 
rsonnel Act. 

3. Petitioner was the Director of the Natural Heritage Program (Program), which is part of the 
anning and Assessment Section (Section) of the Division of Parks and Recreation (Division) in EHNR. 

4. The Program has as its purpose the inventory of locations of natural areas including habitats for 
re and endangered species; the providing of information to influence land use; the planning of protection 

critical natural areas, the establishment of a state registry of natural areas and implementation of binding 
eservation agreements with landowners. 

5. On June 15, 1978, Petitioner received a letter of "Personnel Action" from Jim Stevens, Jr., then 
e Director of the Division, for calling outside the Division to complain about a personnel decision and for 
nding out the May 1978 bi-weekly report before it was distributed internally. 

6. In 1985, then Division Director Wes Davis issued a memorandum enumerating those supervisors 
ho had authority to sign memos of varying degrees of importance and also establishing a "reading file" for 
pies of all correspondence. 

7. On April 2, 1987, Petitioner wrote a memorandum to the Respondent's Division of Personnel 
ersonnel) asserting that they had unilaterally cancelled a Duke Fellows intern position for the Program and 
cusing Personnel of insensitive, illogical, and arbitrary behavior and of threatening the survival of the Duke 
Hows program. 

8. After delivering the memorandum to Personnel, Petitioner requested that it be destroyed, 
owever. Petitioner subsequently gave a copy to an officer of Duke University. 

9. In April of 1987, Petitioner received a final written warning on the basis of personal conduct 
om Director Davis for the "Duke Fellows" memorandum. The description of the infraction was as follows: 
s)ending internal memo to outside cooperating institution without knowledge of, or clearance from, 

ipervisor. Lodging a complaint external to Division with others without first sharing internally." 

10. For a period of one year beginning in June of 1988, Dr. Frank Boteler, Petitioner's supervisor, 
litiated a policy whereby he would review all correspondence of his staff. 

11. After that one year period, that policy was relaxed. However, all major activities were still 
:quired to be brought to Dr. Boteler's attention. 

12. Additionally, Dr. Boteler continued to require that Petitioner's correspondence on major 
:tivities, including major concerns or problems, still be brought to him for signature. 

13. In July of 1988, Dr. Boteler disciplined Petitioner for sending out the Program's grant proposal 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1076 



CONTESTED CASE DECISIONS 



before the Division Director had seen and prioritized all the grant proposals to be submitted at that time. 
Petitioner received a 3-day suspension without pay. 

14. Dr. Boteler also counselled Petitioner and the Division Director issued an order that all 
correspondence with the Natural Heritage Trust Fund Board, the Board which made policy decisions for 
Petitioner's Program, was to go through his office. 

15. Petitioner grieved this disciplinary action but was unsuccessful at all 3 steps of the internal 
grievance procedure. 

16. In 1989, the Chairman of the Natural Heritage Trust Fund Board asked the Secretary of EHNR 
to reconsider Petitioner's final written warning. 

17. Subsequently, on September 26, 1989, the warning was removed from his personnel file by 
Lynn Muchmore, an official with Respondent agency, in a memo which stated, "I am satisfied that disciplinary 
measures have successfully directed Mr. Roe's attention to the relevant standard of conduct." 

18. In January of 1991, Dr. Phillip McKnelly, the current Division Director, wrote a memorandum 
concerning the Duraleigh Road connection which was a matter of some concern at that time. 

19. In March of 1991, Petitioner also wrote a memorandum concerning the Duraleigh Connection. 

20. Subsequently. Doug Lewis, an employee of the Division, came to Dr. McKnelly with both 
memoranda and stated that he was confused and did not know which memo represented the Division's 
position. Dr. McKnelly told Mr. Lewis that his January memo was the Department's position. 

21. Petitioner was not disciplined for the March 1991 memo. 

22. Petitioner's WPPR for 10/88-9/89 notes Petitioner's "weaknesses as seeking autonomy of his 
program - conflicts with Directorate at times in regard to this." The recommended action, in pertinent part, 
was noted as "Route drafts of most correspondence through Section Chief." 

23. Petitioner's WPPR for 1989-90, notes that Petitioner, whenever he had the opportunity, avoided 
representing the program as part of a larger whole. At that time, Dr. Boteler told Petitioner not to continue 
in that practice. Dr. Boteler also told Petitioner not to exclude his chain of command from the Program, and 
in preparing correspondence, to identify the Program as a part of the Division and EHNR. 

24. Petitioner's WPPR for 4/90-9/90, showed Petitioner's rating as excellent and under Supervisors 
comments noted: "Continues to do excellent job on 'breaking new ground' to pursue grants and contracts anc 
administers them. Excellent support work to Land Trust movement. Needs to improve staffing function to 
Rec. and Nat. Heritage Trust be working through DPP and DEHNR chain of command." 

25. At that time. Dr. Boteler further directed Petitioner not to send strong letters himself, but tc 
let Dr. Boteler send them. 

26. In January of 1991, Petitioner's WPPR notes: "Employee does not always clearly relay DPR 
policies or EHNR decision-making processes to Recreation Natural Heritage Trust Fund Board. Instead seems 
to support their distrust of ethics in State government." 

27. Earlier in 1990. the policy was reiterated and expanded which required that all memos or letters 
sent outside the Department be listed in the reading log and a copy of the correspondence placed in the reading 
file. A Staff Directive outlining this procedure was sent to every staff member. 



1077 7:10 NORTH CAROLINA REGISTER August 14, 1991 



CONTESTED CASE DECISIONS 



28. On March 14, 1991, Petitioner wrote a letter to Bjorn Dahl, Forest Supervisor, National Forests 
North Carolina, U. S. Forest Service. 

29. The letter was sent to Mr. Dahl by Petitioner, who typed, copied and mailed it himself. The 
er was 3-1/2 single-spaced pages, was typed on Respondent's letterhead, and used the plural "we" in 
ntifying the source of the criticism. 

30. The Division had a long term working relationship with the U.S. Forest Service which 
luded contractual agreements and Memorandum of Understandings (MOUs). 

31. The letter criticized the United States Forest Service for the dismissal of a probationary 
ployee, Karin Heiman, and for the Forest Service's course of action in protecting endangered and 
eatened species on Forest Service lands in North Carolina. 

32. The letter was strongly worded and expressed deepest concern and shock over the dismissal 
Ms. Heiman. The letter related her general reputation for superior performance and questioned the Forest 
rvice's commitment to botanical resource conservation of federally and State-listed endangered and threat- 
id plant species in the context of the Forest Service's timber management programs. 

33. The letter also asserted that the Forest Service had delayed the funding of State-run rare species 
i natural area surveys for the Highlands and French Broad districts and proposed to discontinue State work 
vard nomination of certain Forest Service lands to the Registry of Natural Heritage Areas and national forest 
jcial interest management areas. 

34. The letter further stated that the Forest Service had refused to make available to its own 
rsonnel the revised list of proposed endangered and threatened species on national forest lands and stated 
it, without a trained botanist, the Forest Service would be unable to use new data to be provided by the 
ite on known occurrences of rare species and exceptional natural communities on Forest Service lands. 

35. The letter linked these problems and Ms. Heiman's dismissal to support an assertion of Forest 
rvice disinterest in biological diversity and endangered species protection. 

36. Additionally, the letter asked for an explanation of Ms. Heiman's dismissal, and evidence of 
surance of protection of most sensitive and significant environmental resources on Forest Service lands. 

37. Copies of the letter were prepared and sent by Petitioner to the Plant Conservation Program 
the North Carolina Department of Agriculture, the Non-Game and Endangered Species Program of the 

ildlife Resources Commission, the Nature Conservancy, and the United States Fish and Wildlife Service. 

38. The Petitioner did not prepare a copy for any of his supervisors, nor did Petitioner list 
:spondent on the copy distribution list. 

39. Before mailing the letter. Petitioner did not show a copy to or discuss the letter with his 
pervisor, Dr. Boteler or with Division Director McKnelly. 

40. Petitioner did not discuss his concerns with Dr. Boteler or Dr. McKnelly before sending the 

iter. 

41 . Petitioner did not enter a copy of the letter in the correspondence log, or file a copy of the 
tter in the reading file. 

42. Dr. McKnelly first became aware of the existence of the letter ten days later on March 22, 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1078 



CONTESTED CASE DECISIONS 



when Mr. Dahl, who was very disturbed by the letter, phoned to discuss it. 

43. Dr. McKnelly told Mr. Dahl that he had no knowledge of the letter and asked Mr. Dahl to send 
him a copy. Mr. Dahl sent the copy as requested. 

44. After the March 22 phone conversation with Mr. Dahl, Dr. McKnelly asked Dr. Boteler if he 
had seen or was aware of the letter. Dr. Boteler informed Dr. McKnelly that he, too, had no knowledge c 
it. 

45. Dr. McKnelly also asked Dr. Boteler to check whether or not the letter had been placed in th< 
reading file. Dr. Boteler reported back that it had not. 

46. Dr. Boteler subsequently read the letter and made the determination that it was inappropriate 
because it had gone to a high level person, dealt with important issues, impliedly represented the Division's 
position on various issues, and included veiled threats. 

47. He was also disturbed that the Petitioner had told people outside the agency about his concerns 
but had not expressed them to Dr. McKnelly or Dr. Boteler. 

48. After Dr. McKnelly saw the letter, he identified dismissal as a possible action and discusset 
this with Dr. Ernest Carl, one of two Deputy Secretaries of Respondent agency. 

49. Dr. Carl had authority to authorize Dr. McKnelly to carry out the requested disciplinary action 

50. Dr. McKnelly could not carry out the action without prior approval from Dr. Carl. 

51. Dr. Carl had power to withdraw his authorization for this proposed disciplinary action. 

52. Dr. McKnelly had authority not to sign the dismissal memo after the Predismissal Conference 

53. Dr. McKnelly decided to, and, in fact, did conduct a Predismissal Conference with Petitionei 
at approximately 3:45 p.m. on March 26, 1991. Dr. Boteler was present at the predismissal conference 

54. On March 26, after meeting with Dr. McKnelly, and approximately contemporaneous to th« 
Predismissal Conference, Dr. Carl attempted to contact a number of persons by phone to attempt to obtaii 
their reactions to the proposed dismissal. 

55. In the Predismissal Conference, Dr. McKnelly and the Petitioner discussed the letter whicl 
Petitioner had sent to Bjorn Dahl. Dr. McKnelly had not yet signed the Personnel Action Memorandun 
(Dismissal Letter). 

56. Dr. McKnelly asked Petitioner if he had written the letter to Mr. Dahl. He also asked i 
petitioner had logged the letter in the correspondence log or placed the letter in the reading file. Additionally 
he asked if Petitioner was familiar with the terms of the previous written warning, and if Petitioner hac 
received permission from his chain of command to mail the letter. 

57. Petitioner answered he had written the letter; had neither logged it nor placed it in the readin 
file; that he was familiar with the terms of the written warning; and that he had received no permission to mai 
the letter. 

58. Dr. McKnelly then advised Petitioner that the conference was his opportunity to justify hi 
action and to explain why he should not be dismissed. 



1079 7:10 NORTH CAROLINA REGISTER August 14, 199: 



CONTESTED CASE DECISIONS 



59. Dr. McKnelly testified, and it is found as fact, that he would not have signed the Memorandum 
Dismissal if Petitioner had presented any satisfactory explanation for the letter. 

60. Petitioner asked if they couldn't just go back to the 1987 order that he was not to write anything 
thout review. Dr. McKnelly said he did not think Petitioner would be able to stick to it for long. 

61 . The Predismissal Conference lasted more than one hour. In the conference the Petitioner never 
erted any authority to send the letter to Mr. Dahl without the knowledge or clearance of Dr. Boteler, or 

thout first sharing it internally within the Agency. 

62. At the conclusion of the conference. Dr. McKnelly determined that he would dismiss Petitioner 
)m his position. Dr. McKnelly then signed the dismissal letter and obtained Petitioner's signature on it. 

63. After the Conference, Dr. Boteler offered to give Petitioner a ride home. Petitioner asked him, 
My are they out to get me?" Dr. Boteler told Petitioner that he had probably made the single greatest 
ntribution to conservation in the State but that the letter was "wrong, simply wrong." 

64.22 The reasons for the termination, as stated by Dr. McKnelly in the termination memorandum 
;re that Petitioner had: 

Sent a letter to an outside cooperating institution without knowledge of, or clearance 
from, his supervisor; and lodged a complaint external to the Division with others 
without first sharing internally. 

65. This commentary was inserted on the Personnel Action Memorandum, which was a form 
emo, under the category entitled, "Corrective Action" instead of the next category which was entitled, 
upervisor's Description of Infraction." 

66. Petitioner testified that it would have taken too long to explain the problem to everyone and 
:t permission to send the letter. He did not think the letter would cause as much of a reaction as it did. 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

list Cause 

1 . A permanent employee subject to the State Personnel Act may be discharged from his position 
nly for just cause. Just cause may consist of job performance or personal conduct. 

While many infractions fall clearly within one of these two categories, some require a closer analysis 
efore a determination can be made between job performance, which requires an established series of warnings 
a condition precedent to dismissal, and personal conduct, which does not. 

The Petitioner had a long history of counselling concerning the issue of unauthorized critical letters 
r memos being sent outside the agency without approval. It is the opinion of the undersigned that this letter 
as not an instance of unfamiliarity with protocol or an isolated instance of poor judgment. It is the opinion 
f the undersigned that Petitioner acted either intentionally or impulsively when he sent the letter to Mr. Dahl. 



2. Because the letter was sent to a high level official of a federal agency with which the Respondent 
ad established a formal working relationship, and because the letter strongly expressed a number of concerns 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1080 



CONTESTED CASE DECISIONS 



and criticisms, was sent without a review or approval of Petitioner's supervisors, and purported to represent 
the views of the Respondent which the Respondent had not authorized, it is the opinion of the undersigned 
that the letter sent from Petitioner to Bjorn Dahl constitutes personal misconduct. 

3. Further, given arguendo that the letter was the only incident of its type committed by a 14 year 
supervisory employee, it is the opinion of the undersigned that this lengthy, highly critical letter going to an 
outside agency addressed to a high level administrator, standing alone, would amount to personal misconduct. 

4. It is further concluded that the Respondent had just cause to dismiss the Petitioner for this 
personal conduct violation. 

Dismissal Procedure 

5. The Memorandum of Dismissal, a form memorandum with sections to be fdled in by 
Supervisors, listed the reason for Petitioner's dismissal under the section entitled "Corrective Action" instead 
of the section entitled "Supervisor's description of Infraction(s) " . It is the undersigned's opinion that this entry 
under the wrong heading is not procedural error sufficient to warrant a finding of a violation of Petitioner's 
procedural due process rights. 

6. Additionally, Petitioner asserts that the reasons given for his dismissal made reference to sending 
a letter outside the division without the knowledge or clearance of the supervisor but did not specifically list 
the letter to Bjorn Dahl by name, date, or other identifying criteria. The Predismissal Conference, however, 
lasted for more than an hour and centered around a discussion of the Bjorn Dahl letter. It is the opinion of 
the undersigned that the dismissal letter stated with sufficient particularity the cause for Petitioner's dismissal 
and the absence of a specific reference to the Bjorn Dahl letter by name and date was not a sufficient violation 
of the Petitioner's procedural due process rights such as to warrant a reversal of Respondent's action. 

7. The Letter of Dismissal was handed to Petitioner at the close of the pre-dismissal conference 
When an employee is being dismissed for personal misconduct, the requirement of timely written notice has 
been met where the written statement of the reasons for dismissal is given to the employee simultaneously with 
his dismissal. 

8. Petitioner further asserts that since Dr. Carl telephoned people to discuss Petitioner's dismissa 
at or about the time Petitioner was engaged in his predismissal conference, these facts indicate that Dr. Car 
and Dr. McKnelly had made up their minds to dismiss Petitioner regardless of anything Petitioner would sa) 
during the Predismissal Conference. The undersigned does not agree. 

Although the evidence does not clearly establish how many calls were made by Dr. Carl, to whon 
they were made, or the exact time that they were made, the evidence does tend to indicate that Dr. Carl ma) 
have made one or more calls contemporaneously with Petitioner's predismissal conference. While this practice 
is ill advised, it is important to note that Dr. McKnelly had not signed the dismissal memorandum and die 
not do so until the conclusion of the predismissal conference. Because of Petitioner's exemplary record, hac 
Petitioner presented any explanation, justification, legitimate excuse or mistake in the facts as Dr. McKnell) 
understood them, Dr. McKnelly would not have signed the dismissal memorandum and the dismissal wouk 
not occur. 

It is, therefore, concluded that any telephone communications by Dr. Carl contemporaneous wit! 
Petitioner's predismissal conference did not indicate a decision to terminate Petitioner which was inexorable 

9. It is concluded that Respondent followed proper procedure in the dismissal of Petitioner. 
Freedom of Speech 



1081 7:10 NORTH CAROLINA REGISTER August 14, 19% 



CONTESTED CASE DECISIONS 



10. The N. C. Court of Appeals recently addressed the issue of freedom of speech in public 
ployment. Howell v. Town of Carolina Beach , N.C. App., 16 June, 1992. 

A public employee does not relinquish First Amendment rights to comment on matters of public 
icern by virtue of his or her public employment. However, the test for determining if an employee's 

edom of Speech has been violated is (a) a determination of whether the subject is one of legitimate public 
lcern and (b) if so, a balancing of the employer's interests in fulfilling its duties and responsibilities in 
naging its business without impediments or disruptive activity against the employee's interest in expressing 

or her opinion freely. 

The test for determining if a matter is one of public concern is whether the matter is one in which 
e and open debate is vital to informed decisionmaking by the electorate. The employees speech must be 
imined in light of the content, form, and context of a given statement to determine whether it is a matter 
public concern. 

While concern for the environment is clearly an issue of legitimate public concern, the Petitioner's 
ter to Mr. Dahl addressed many concerns of the working relationship between Respondent and the U.S. 
rest Service, the firing of an employee, and a criticism of past and future behavior by the U.S. Forest 
rvice. The letter moved far beyond the area of public concern and entered into the specifics of the 
lationship between the Respondent and the United States Forest Service in North Carolina. 

1. It is concluded that most, if not all, of the matters raised in the letter to Mr. Dahl transcended 
Dse matters which could be construed to be of public concern. 

Additionally, even given arguendo that some of the matters raised were matters of public concern, 
e content, form and context of Petitioner's speech indicate that Petitioner did not "speak" as a private 
:izen, but spoke in his capacity as Head of the Natural Heritage Program. He further purported to speak 
it only for his program but for his Section and Division. 

12. It is concluded that Petitioner was not engaged in an exercise of his freedom of speech right 
hen he wrote the letter to Mr. Dahl and Respondent, therefore, did not violate Petitioner's right to freedom 
: speech when it took adverse personnel action against Petitioner. 

Based upon the above Conclusions of Law, the undersigned makes the following: 

RECOMMENDATION 

That the Personnel Commission uphold the Respondent's dismissal of Petitioner from his position of 

nployment. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
earings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
50B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
pportunity to file exceptions to this recommended decision and to present written arguments to those in the 
gency who will make the final decision. G.S. 150B-36(a). 



7:10 NORTH CAROLINA REGISTER August 14, 1992 1082 



CONTESTED CASE DECISIONS 



The agency is required by G.S. 150B-36(1d) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 

This the 23rd day of June, 1992. 



Dolores O. Nesnow 
Administrative Law Judge 



1083 7:10 NORTH CAROLINA REGISTER August 14, 19% 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 

106 - 173 2 

174 - 331 3 

332 - 400 4 

401 - 490 5 

491 - 625 6 

626 - 790 7 

791 - 902 8 

903 - 965 9 

966 - 1086 10 



3MTNISTRATION 

Auxiliary Services, 4 

Motor Fleet Management Division, 794 

GRICULTURE 

Gasoline and Oil Inspection Board, 336 
Plant Industry, 904 

Structural Pest Control Committee, 332 
Veterinary Division, 342 

Ijltural resources 

U.S.S. Battleship Commission, 911 

CONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629 
Community Assistance, 909, 968 
Departmental Rules, 801 

NVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 211, 655 

Departmental Rules, 826 

Environmental Health, 223 

Environmental Management, 190, 416, 500, 644, 830, 1013 

Governor's Waste Management Board, 564, 920 

Health: Epidemiology, 140 

Health Services, 52, 659 

Marine Fisheries, 530 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission, 28. 133, 408, 449, 551, 921 

Wildlife Resources Commission Proclamation, 176 

INAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793, 966 



April 

April 

May 

May 

June 

June 

July 

July 

August 

August 



7:10 NORTH CAROLINA REGISTER August 14, 1992 



1084 



CUMULATIVE INDEX 



GOVERNOR/LT. GOVERNOR 

Executive Orders, 401, 491, 626, 791, 903 

HUMAN RESOURCES 

Aging, Division of, 121, 346 

Day Care Rules, 123 

Economic Opportunity, 5 

Facility Services, 111, 177, 496, 634, 980 

Medical Assistance, 4, 415, 496, 816, 989 

Mental health. Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809 

Social Services Commission, 183, 911 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450, 576, 928 

INSURANCE 

Consumer Services Division, 125 

Departmental Rules, 7 

Engineering and Building Codes, 19, 643 

Fire and Rescue Services Division, 17 

Hearings Division, 124 

Life and Health Division, 22, 347 

Property and Casualty Division, 20 

Seniors' Health Insurance Information Program, 132 

JUSTICE 

Alarm Systems Licensing Board, 27, 189, 643, 919 
General Statutes Commission, 353 
Private Protective Services, 918 
Sheriffs Education and Training, 990 
State Bureau of Investigation, 188, 499 

LICENSING BOARDS 

Certified Public Accountant Examiners, 355 

Cosmetic Art Examiners, 360, 922 

Dietetics/Nutrition, 923 

Electrolysis Examiners, 69, 700 

Nursing. 232, 700 

Professional Engineers and Land Surveyors, 566 

Speech and Language and Pathologists and Audiologists, 705 

LIST OF RULES CODIFIED 

List of Rules Codified, 72, 362, 452, 584 

PUBLIC EDUCATION 

Elementary and Secondary, 852 

REVENUE 

License and Excise Tax, 712 
Motor Fuels Tax Division. 361 

STATE PERSONNEL 

Office of State Personnel, 237, 705 

TAX REVIEW BOARD 



1085 7:10 NORTH CAROLINA REGISTER August 14, 199 



CUMULATIVE INDEX 



(rders of Tax Review, 494 

ANSPORTATION 

[ighways, Division of, 228, 856, 1062 
lotor Vehicles, Division of, 68, 142 



?:10 NORTH CAROLINA REGISTER August 14, 1992 1086 



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